Eastern District Local Civil Rule 83.5.2 requires any attorney who is not a member of the U.S. District Court for the Eastern District of Pennsylvania bar to hire as associate counsel (local counsel) a member of the Eastern District bar to appear as counsel of record on all pleadings. The out-of-district attorney may be admitted pro hac vice on application of the local counsel for appearance in that matter only. It is local counsel’s job to ensure the local rules of pleading and procedure, and the individual judge’s policies and procedures, are followed. Often, outside counsel’s haste or unfamiliarity with the nuances of the local rules can result in valuable time lost or denial of relief. The U.S. District Court for the Middle District of Pennsylvania has a similar mandatory rule. The U.S. District Court for the Western District of Pennsylvania has no such formal local counsel requirement except that a motion for pro hac vice counsel must be made by a member of the Western District.
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 and emails, but not read them, and send them on to the outside counsel. Such a view 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 of court, 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.
Rule 83.5.2 sets out only one task for local counsel — that of accepting service of all pleadings and material 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. See Marcangelo v. Boardwalk Regency, 47 F.3d 88 (3d Cir. 1995) (lack of notice to pro hac vice counsel did not excuse failure to appeal on a timely basis where notice was given to local counsel).
Despite the single task described in the rule, case law and local practice suggests that the usual role of local counsel is much broader than mere paperwork administration. Problems often arise where a Pennsylvania lawyer is engaged as local counsel and the pro hac vice counsel drafts a motion or pleading and emails to local counsel for filing. Failure to observe the local rules are not excused by simply following the directions of pro hac vice counsel. Judge Norma L. Shapiro once sanctioned both pro hac vice counsel and local counsel for violation of a protective order. Shapiro rejected local counsel’s defense that she was merely following lead counsel’s instructions. Shapiro said, “It is local counsel’s job to ensure that the local rules are followed.” See Horizon Unlimited v. Silva, 2000 U.S. Dist. LEXIS 7760 (E.D. Pa. June 7, 2000).
In Mash Enterprises v. Prolease Atlantic, 2004 U.S. Dist. LEXIS 13575 (E.D.Pa. July 19, 2004), Judge Robert Kelly awarded the full amount sought in attorney fees for the work done by local counsel, recognizing that the role of associate counsel under the rule is more than to serve as a post office box for pro hac vice counsel. Kelly said, “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 of justice.”
Failure to follow a court’s individual practices can lead, at a minimum, to an admonishment. As stated by Judge Gene E.K. Pratter in Sheridan v. NGK Metals, 614 F. Supp. 2d. 536 (E.D. Pa. 2008), “The court admonishes counsel that failure to follow the procedures should not be routinely considered a circumstance without consequence.” Failure to abide by a local rule may alone be grounds for denial of relief. See Smith v. Resorts, 1999 U.S. Dist. LEXIS 17614 (E.D. Pa. Nov. 10, 1999) (failure to file required response to motion). For example, Local Civil Rule 7.1 requires a formal motion describing the relief sought, accompanied by a brief containing authorities relied upon. Often pro hac vice counsel attempt to combine the motion with the brief and will send it to local counsel in this form. Filing the pleading in this form may result in a motion not being considered. In IBEW Local 380 Health and Welfare Fund v. Travis Electric, 2008 U.S. Dist. LEXIS 58037 (E.D. Pa. July 31, 2008), Judge Louis H. Pollak stated, “Few rules of civil procedure are as easy to follow as Rule 7(b) and Local Rule 7.1(c). All these rules require is a formal motion and a statement of grounds. If defendant cannot be bothered to submit a formal motion and a statement of grounds, then it cannot be serious about the relief it purports to desire.” Judges James Knoll Gardner and Eduardo C. Robreno have denied motions for the same reason.
Local Civil Rule 26.1(f) requires parties to use reasonable efforts to resolve discovery disputes before seeking judicial intervention. This also applies to parties seeking discovery from nonparties. See Gardella v. Pro Lex International, 2007 U.S. Dist. LEXIS 15601 (E.D. Pa. March 5, 2007). Failure to use such reasonable efforts is alone sufficient grounds to deny a discovery motion. See Sprague v. S.N.A., 2011 U.S Dist. LEXIS 55782 (E.D. Pa. May 17, 2011). Shapiro and Robreno have denied motions on this ground. In the words of Robreno, “Compliance with the Eastern District rules is not optional.” See Tarkett v. Congoleum, 144 F.R.D. 282 (E.D. Pa. 1982). Strict application of this rule has been followed by the U.S. Court of Appeals for the Third Circuit. See Pitrucelli v. Buhringer, 46 F.3d. 1298, 1311 N. 17 (3d Cir. 1995).
Failure to document costs pursuant to Local Rule 54.1 is another area where a request will be summarily denied. As Judge William H. Yohn Jr. said in denying a request for costs in Lachance v. Harrington, 965 F. Supp. 630, 651 (E.D. Pa. 1997), “It is difficult enough for a court to determine whether expenses requested are reasonable with thorough documentation.” Where a party files a motion for costs directly with the court rather than proceeding by rule before the clerk, this motion will summarily be dismissed. See Carney v. IBEW Local 98 Pension Fund, 2002 U.S. Dist. LEXIS 15399 (E.D. Pa. Aug. 13, 2002).
The judges of the Middle and Western Districts of Pennsylvania have dismissed cases or pleadings for failure to follow the local rules. For a detailed list of such cases, email firstname.lastname@example.org.
As a matter of 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.
Robreno 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, Civ. 00-4931 (E.D.Pa. Jan. 31, 2001). In Goodson v. Apfel, 2001 U.S. Dist. LEXIS 7427 (E.D.Pa. June 6, 2001), 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.
Local counsel should insist on an engagement letter with the client to formalize the relationship, but also to put the client on notice that local counsel is 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 to 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 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 that 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 ensure compliance with the local rules and the individual judge’s local procedure and, just as important, to ensure the pleading does not touch a particular “hot button” of a particular judge that is not known to pro hac vice counsel.
Where a letter to the court is permitted by the judge’s individual procedures, it should be written by local counsel. Ensure that you, as local counsel, rather than pro hac vice counsel, deal with the courtroom deputy.
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 judge 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 local attorney or local 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. I am aware of a situation where an attorney often acted as local counsel for a large corporation. The corporation decided to file a substantial suit against a small Philadelphia law firm. The attorney continued to act as local counsel for the corporation in that suit. The shareholders of the defendant law firm reacted strongly to the participation of the attorney even as local counsel, and the suit destroyed years of professional good will and continued referrals. 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 website at www.paed.uscourts.gov; click on forms, then attorney admission application.
An exception to the requirement of local counsel in Rule 83.5.2 is in cases filed as multidistrict litigation cases. See Clerk’s Office Procedural Handbook at XIII. •
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 can be contacted by email at email@example.com. Vaira has a blog devoted entirely to Eastern District practice at http://petervaira.wordpress.com.