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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-2151" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2015/11/Local-300x246.jpg" alt="locally grown red round grunge stamp on white" width="300" height="246">If you only agree to be &ldquo;local counsel&rdquo; in a matter, you can rest assured that your limited undertaking also limits the scope of your duties &mdash; right?&nbsp;&nbsp; Wrong &mdash; as a recent disciplinary case and&nbsp;recent ethics opinion point out.
No &ldquo;local counsel exception&rdquo; to conduct rules
If your law school friend is serving as &ldquo;national counsel&rdquo; for a company defending product liability cases all over the country, you would naturally welcome a call asking you and your firm to serve as &ldquo;local counsel&rdquo; in your state in a claim against the company filed on your home turf.
In&nbsp;taking up the opportunity your friend is offering, you might make some assumptions &mdash; you might even regard these assumptions as &ldquo;customary&rdquo; in your bailiwick.&nbsp; You might assume, for example,&nbsp;that your firm is only going to be a&nbsp;&ldquo;mail drop,&rdquo; and therefore you have no duty to know or advise on&nbsp;the substantive local law at play.&nbsp; You might also assume that&nbsp;your duty to communicate is limited to interchanges with &ldquo;national counsel.&rdquo;&nbsp; In fact, since you might never&nbsp;have any contact with the company itself,&nbsp;you might even&nbsp;designate the &ldquo;national counsel&rdquo; firm as the &ldquo;client&rdquo; in your&nbsp;billing system.
These assumptions may be &ldquo;customary,&rdquo; but they almost certainly lack any basis in your state&rsquo;s version of the Model Rules of Professional Conduct &mdash; which make no distinctions between &ldquo;local counsel&rdquo;&nbsp;and &ldquo;primary counsel&rdquo; when it comes to the duties arising&nbsp;from the&nbsp;attorney-client relationship.
Cautionary tale
<a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-4442.pdf">Disciplinary Counsel v. Broyles</a>, decided October 29, illustrates how thinking of yourself as &ldquo;only&rdquo; local counsel can lead you astray.&nbsp; The Ohio lawyer in the case drew a public reprimand for his conflict of interest in representing a couple in defending a foreclosure action brought by a lender.&nbsp; The conflict consisted of the fact that nine months earlier, a law firm had hired the lawyer to&nbsp;be&nbsp;&ldquo;local counsel&rdquo; in representing the same lender against the same couple in obtaining a default judgment in the same foreclosure case against them.
The <a href="http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=765475.pdf">consent to discipline</a> that the parties filed in the&nbsp;disciplinary case details that after the lender&nbsp;demanded the lawyer&rsquo;s disqualification in the foreclosure suit, the court granted the motion, and the lawyer appealed.
On <a href="http://www.supremecourt.ohio.gov/rod/docs/pdf/7/2013/2013-ohio-4360.pdf">appeal</a>, the lawyer argued that he was only providing local counsel services to the law firm that had hired him (which is where he sent his fee invoice) &mdash;&nbsp;and that he&nbsp;had never represented the lender.&nbsp; He said &ldquo;that he&nbsp;was providing a service to the law firm and not to [the lender]&nbsp;as he had no authority to make any representations to the court and did not advocate for any position in the case.&rdquo;&nbsp; There was no case law to support that contention, and the appeals court&nbsp;held that&nbsp;the lender was the client, and reasonably believed itself to be.
Bottom line:&nbsp; the lawyer not only got disqualified from the foreclosure case based on his confusion about who his client was, but also was embarrassed with a public reprimand based on the violation of Ohio&rsquo;s version of <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients.html">Model Rule 1.9</a> on former-client conflicts.
Ethics opinion guidance
In June, the Committee on Professional Ethics of the Association of the Bar for the City of New York&nbsp;issued an <a href="http://www.nycbar.org/ethics/ethics-opinions-local/2015opinions/2188-formal-opinion-2015-4-duties-of-local-counsel-">ethics opinion</a>&nbsp;underscoring that lawyers who act as local counsel must adhere to the same ethics rules as lead counsel.&nbsp; &ldquo;An attorney who agrees to act as local counsel may be subjected to obligations and risks that she does not anticipate or intend to assume,&rdquo; the Committee said.&nbsp; If there are to be any limits on the scope of local&nbsp;counsel&rsquo;s work, &ldquo;it is the attorney&rsquo;s obligation to communicate [them] to the client ... rather than to rely on undefined terms, such as &lsquo;local counsel.&rsquo;&nbsp; Preferably, local counsel will enter into an independent written retainer agreement with the client.&rdquo;
This emphasizes the central role of the engagement letter, and the best practice of making the retention agreement directly with the client &mdash; not with &ldquo;lead counsel.&rdquo;&nbsp; If you intend to limit your role to certain tasks, or a certain phase of the matter, you had better lay that out clearly at the beginning of the representation and get the client&rsquo;s consent in writing.
As always, communication and documentation&nbsp;are the keys to avoiding unpleasant and potentially expensive surprises.
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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Want to be “local counsel”?  Understand who your client is and define your duties