The ABA Model Rules of Professional Conduct recognize the common occurrence of a lawyer accepting a representation in a jurisdiction in which they are not admitted, so long as they benefit from the advice and guidance of local counsel admitted in that jurisdiction and working alongside them. Picking the right local counsel can provide a tactical advantage for the non-admitted lawyer. For the local counsel, taking on this role can be a great way to grow their practice and expand their network of contacts.

In a typical working relationship, the out-of-state attorney might rely on the local counsel for procedural guidance, handling filings and similar tasks, while the out-of-state attorney retains authority over key strategic decisions. But local counsel still owes ethical duties to the client, even though their role is limited, which can create risk for the local counsel of a bar grievance or malpractice complaint if those duties are not met.

Here are some tips for how lawyers acting as local counsel can meet their ethical and client service obligations.

What Is the Division of Labor?

The role of local counsel should be particularized to the matter. Sometimes the local counsel is primarily there to confirm compliance with the rules. In other matters, the local counsel may take a more active role, such as weighing in on strategy, taking depositions or presenting argument in court.

The legal team and client can discuss the division of labor at the outset of the matter to make sure that there are no misunderstandings—and no gaps in representation by the various legal teams.

Even for matters where the local counsel serves in a more "traditional" role, focusing on local practice, a lot of value can still be added in that position. Indeed, local counsel can educate out- of-state counsel on the "unwritten" rules of the jurisdiction, what arguments might be better received by a jury in that area and the reputation of the judge.

Local Counsel Is Still Bound by the Rules of Professional Conduct

In defining their respective roles, local counsel may assume that lead counsel is responsible for the "heavy lifting" in the matter and, thus, is the primary bearer of ethical obligations to the client. However, the ABA Model Rules of Professional Conduct do not distinguish between lead counsel and local counsel. Thus, it could be a mistake for lawyers to assume that they are not "responsible" under the Rules of Professional Conduct simply because they are local counsel.

Even in situations where local counsel's role has been narrowly defined, their representation of the client still likely implicates several ethical obligations, including providing competent representation (Rule 1.1), acting with reasonable diligence and promptness (Rule 1.3), regularly consulting and communicating with the client as may be required during the representation (Rule 1.4), and avoiding conflicts of interest (Rules 1.7-1.9).

In 2006, the State Bar of Georgia issued a Formal Advisory Opinion reviewing the question: "Can a Georgia attorney, who has agreed to serve as local counsel, be disciplined for discovery abuses committed by an in-house or other out-of-state counsel who is not a member of the State Bar of Georgia?" FAO 05-10. The answer was "yes," for those situations where the local counsel knows of the discovery abuse and ratifies it—which can include the local counsel's "willful blindness"—or where the local counsel has "supervisory authority" over the out-of-state lawyer.

Beyond that, FAO 05-10 recognized that the role of local counsel "may carry with it affirmative ethical obligations." For example, even in situations where the local counsel's role is narrowed to things like the signing of pleadings or sponsoring pro hac vice admissions, that role still requires local counsel to investigate the filings as part of their good faith representations to the court. And, pointedly, FAO 05-10 concludes that "[i]f local counsel engages in any unethical conduct, it is no defense to a violation that the conduct was suggested, initiated, or required by lead counsel."  Ethical opinions from other states have similarly followed suit.

When in doubt, the safest option is to ensure compliance with all ethical obligations.

Consider Limiting the Scope of the Representation

ABA Model Rule of Professional Conduct 1.2(c) expressly permits a lawyer to "limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent." Thus, local counsel can consider defining their role – and the breadth or limitations of the scope of that role—in their engagement letter with the client.

For example, if lead counsel assumes primary responsibility for setting the strategy for the matter or acting as the head of the trial team, then local counsel could seek to exclude such responsibility from the scope of representation. Comment [7] to Rule 1.2 recognizes that the rule grants "substantial latitude" to lawyer and client to tailor or limit the representation; however, "the limitation must be reasonable under the circumstances." Thus, a limiting engagement letter might not be enforceable if it seeks to divorce local counsel from all obligations under the ethical rules (such as the duty of competence); but an engagement letter that confirms that the scope of local counsel's role is limited could be drafted to reflect the requirement for reasonableness.

Each representation has unique considerations, but other topics worth addressing (in both the discussion about the division of labor and any subsequent engagement letter) include a clear delineation of tasks, both procedural and substantive; timing of the representation; and sharing or division of fees with lead counsel, including billing frequency, expenses and issues pertaining to nonpayment.

By being aware of their ethical duties, lawyers acting as local counsel can serve a valuable role in a litigation matter.