by Richard M. Hunt
Everybody knows what it means to be local counsel. Introduce lead counsel to the judge, attend some hearings, keep track of the pleadings, help with voir dire to give the jurors a local face to relate to, and collect your fees. The money is modest, but the work is easy. Or maybe not. According to the Texas Supreme Court, “[t] here are ethical considerations overlaying the contractual relationship” between attorney and client. Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 560 (Tex. 2006). These ethical considerations, as well as the ordinary questions about the meaning of a contract, make it dangerous to take the local counsel job lightly.
Contract analysis is the first step to understanding the obligations of local counsel. Everyone knows local counsel serves a limited role, but only until there is a problem. If a case is lost, or goes south for any reason, the client is very likely to decide that responsibility is based on the size of the malpractice policy. Careful drafting of the fee agreement is required to avoid this problem because “[t]he lawyer . . . bears the burden of ensuring that the contract states any terms diverging from a reasonable client’s expectations.” Restatement (Third) of the Law Governing Lawyers § 18 cmt. h. It is critical that the fee agreement carefully define the jobs local counsel is expected to do and make it clear that lead counsel is responsible for everything not explicitly listed.
Once the limits are defined they must be followed. When lead counsel is shorthanded or pressed for time, it is easy to press local counsel into service for jobs outside the scope of representation. Local counsel must make it clear to the client that these are one-time exceptions so the client is not misled about local counsel’s responsibilities.
Local counsel must also remember that the court will have something to say about his or her duties. In the Eastern District of Texas, for example, conferences for discovery disputes must include lead counsel and all local counsel, and the certificate of conference must be signed by lead counsel and all local counsel. In the Northern District, local counsel must be prepared to present and argue the client’s position at any hearing called by the presiding judge. The fee agreement may limit local counsel’s role vis-à-vis the client, but it must take into account the requirements of the court as well.
Finally, although local counsel can limit the scope of representation, he or she cannot contract away the ethical obligations to the client. This issue arises frequently in disputes about the reasonableness of fees, but it goes beyond money. For example, in a case from the Fifth Circuit (Curb Records v. Adams & Reese L.L.P., 203 F.3d 828 (5th Cir. 1999)) local counsel contracted directly with lead counsel. The fee agreement provided for a limited scope of representation and specifically forbade contact between local counsel and the client. Lead counsel missed a number of critical deadlines with the result that the case was eventually lost. Local counsel, true to the fee agreement, never told the client about the problem.
The Fifth Circuit found that the “no contact” contract was valid because lead counsel had authority to enter into such an agreement. It also found though that local counsel could not contract away his ethical obligations to the client, which included the obligation to inform the client of misconduct by lead counsel. It drew a distinction between disagreements about strategy and “lead counsel’s malfeasance or misfeasance,” even while it recognized that this distinction may be hard to make in practice. Although the case was decided under Louisiana law, the ethical requirements on which the Court relied are almost identical to those in the Texas Disciplinary Rules of Professional Conduct.
Serving as local counsel may not require a lot of work, but it does require careful thought about local counsel’s duty to the client. The fee agreement must clearly inform the client of the limited extent of local counsel’s work and must take into account obligations of local counsel to the court. Most important, local counsel must remember that the fee agreement cannot override the lawyer’s ethical obligations to the client because those ethical obligations cannot be delegated or waived.
Richard Hunt is a partner with Hunt Huey PLLC. He can be reached at email@example.com.