Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Serving as local counsel in federal district court for an out-of-district attorney is more complicated than would initially appear. It requires a separate duty to the client, and if a carefully structured regimen is not followed, the result could be problems with the client relationship, Rule 11 charges and loss of fees. Local Civil Rule 83.5.2 requires any attorney who is not a member of the Eastern District bar to hire as associate counsel (local counsel), a member of the Eastern District bar to appear as counsel of record on all pleadings. Thereafter, the out-of-district attorney may be admitted pro hac vice on application of the local counsel for appearance in that matter only. The process and the responsibilities of both counsel require some examination. Some lead litigation attorneys refer to local counsel as “docket counsel,” someone hired to satisfy the bare requirements of Rule 83.5.2 and thereafter, simply to act as a transmittal agent for out of district counsel. One attorney who was engaged as local counsel said his job was to open the mail, but not read it, and send it on to the outside counsel. This is an incorrect view of duties of local counsel, and can lead to ethical and practical problems. An active local counsel is one who is hired to give advice on local procedure, to be available for service of pleadings, who has credibility with the judges and the clerk, advises on pleadings, and often appears in court with or without outside counsel. Local counsel is regarded by the judges of the Eastern District as an attorney of record with responsibilities to the client and the court. The importance of the role of local counsel is exemplified by the fact that the district court devoted several hours to the subject at the 2002 Federal Bench Bar Conference. Abe Reich, the former chancellor of the Philadelphia Bar, was chairman of the panel discussion at that Bench Bar Conference. Reich said the court requested the discussion panel to emphasize the independent role of local counsel, and counsel’s responsibility to know the requirements of each judge. Rule 83.5.2 only sets out one task for local counsel – that of accepting service of all pleadings and papers associated with the case. Thus, local counsel bears the primary responsibility to serve as the contact point for the court and other counsel. A party’s failure to act on a timely basis will not be excused where local counsel received notice of a judicial action but pro hac vice counsel did not. Despite the single task described in the rule, case law and local practice suggests that the usual role of local counsel is much broader that mere paperwork administration. In Horizon Unlimited Inc. v. Silva, Judge Norma Shapiro sanctioned counsel, including local counsel, for violation of a protective order. Local counsel sought to avoid sanction by contending her role “was limited to following [lead counsel's] instructions.” The court rejected that defense. Shapiro said, “an attorney retained as local counsel is obliged to ensure that lead counsel comply with our local standards of practice. [Local counsel's] role in this action was not consistent with that obligation. She testified that as local counsel she acted as nothing more than a ‘file clerk.’ [Local counsel] improperly referred all issues of . . . compliance to [lead counsel] and relied on his decisions on compliance with a court order, she did not take all reasonable steps necessary to comply with her obligation as local counsel and shares some responsibility for the contempt.” In Mash Enterprises v. Prolease Atlantic Corp., Judge Robert Kelly awarded the full amount sought in attorney fees for the work done by local counsel, recognizing that “one purpose of the rule is to facilitate the service of papers during the course of the litigation upon the party represented by out-of-the-jurisdiction counsel. However, the role of associate counsel under the rule is more than to serve as post office box for pro hac vice counsel. It appears that another purpose for the rule is predicated upon a notion that familiarity with local rules and procedures advances the goal of the efficient administration justice. Thus, by retaining local counsel, pro hac vice counsel can rely upon the benefit of associate counsel’s knowledge of and experience with local rules and procedures.” As a matter of practical expediency, it is the general practice of the judges’ courtroom deputy clerks, who are responsible for instituting and carrying out scheduling changes, to deal directly with local counsel. Any request by the judge that requires some action by counsel usually will be communicated to local counsel who will be asked to notify pro hac vice counsel. One judge has held that local counsel must not only be admitted in the Eastern District, but must have an office in the Eastern District as well. In EEOC v. Coatesville Area School District, Judge Eduardo C. Robreno said, “It would frustrate this purpose of the rule for members of the bar of this Court to act as associate counsel of record for nonmembers if the member who purports to act as associate counsel of record does not maintain an office within the Eastern District of Pennsylvania where papers can be served.” In Goodson v. Apfel, Judge J.M. Kelly replaced the initially retained local counsel with another attorney who practiced in the Eastern District, when it was discovered that the first local counsel practiced in the Chicago and New York offices of his firm, but was generally unavailable for Eastern District participation. It has been my personal experience that judges would prefer to deal with someone they can contact locally, despite the availability of modern communication facilities. I have been the focal point for judges who did not want to wait to deal with someone in another time zone, and wanted to express their requirements (or displeasure) quickly, leaving it up to me to obtain a response or to transmit the judge’s message. Insist on an engagement letter with the client to formalize your relationship, but also to put the client on notice you are there to actively represent the client, not to act as a mailbox. You do not know what the pro hac vice attorney has told the client about duties of local counsel. Quite often the client assumes your firm is simply there to serve papers. Determine up front what duties your firm is expected to provide, and not provide. This is very important. I have seen instances where a local counsel has undertaken tasks that appear to have been reasonably required in the course of the litigation, and the client has balked when confronted with the bill. I have seen instances where the client is a key client of the pro hac vice firm, and has often received billing concessions from that firm. When confronted with invoices from the local counsel, the client has brought pressure for similar concessions. Ensure the pro hac vice counsel follows the local rules and local customs. Where there is a serious deviation it is local counsel’s duty to point out the problem in writing. Where pro hac vice counsel takes a position based upon his or her prior activity in the litigation, such as making an agreement with other parties which becomes relevant to the litigation, insist that pro hac vice counsel submit an affidavit describing the actions to be filed as part of the pleadings. This relieves local counsel of making allegations in a pleading about events to which local counsel was not a participant. Review pleadings filed to insure compliance with the local rules, and the individual judge’s local procedure and just as important, to insure the pleading does not touch a particular “hot button” of a particular judge. Where a letter to the court is required, and it is permitted by the judge’s individual procedures, it should be written by local counsel. Insure that you as local counsel, rather than pro hac vice counsel, deal with the courtroom deputy. In a multi-party litigation, in which there are numerous depositions and conferences, insure that pro hac vice counsel is kept aware of key depositions and conferences. In instances where the judge has informed you as local counsel of the court’s displeasure of an action taken by your team, do not attempt to pass the blame to the pro hac vice counsel. Assure the court that his or her message has been received and it will be acted upon. Judges dislike attorneys passing the buck. In situations where you are requested to act as local counsel in a suit against another attorney or law firm, keep in mind the practical effect. Even though you are local counsel, the suit will be regarded as a personal attack and at some point in the litigation, you may be directly involved in a confrontation with the defendant firm or attorney. The title of local counsel will not spare you from the professional fallout. Pro hac vice applications are now greatly simplified by using forms provided on the court’s Web site at www.paed.uscourts.gov, click on forms, and click on attorney-admission application. An exception to the requirement of local counsel is Rule 83.5.2 is in cases filed as multidistrict litigation cases. PETER F. VAIRA is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of Eastern District Federal Practice Rules, Annotated (Gann Law Books). He may be contacted concerning issues of eastern district practice at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.