D.C. Bar Ethics Opinion 387: The Ethical Obligations of Local Counsel

Some of the most important cases in the country are litigated in D.C. courts. That means lawyers not barred in D.C. or not admitted to practice in a given court here often need to appear in D.C. courts. Whether they are patent lawyers from Silicon Valley or securities lawyers from New York, those lawyers from outside the beltway often need local counsel.

But what is “local counsel”? It’s an ill-defined term. Serving as local counsel can mean that you file things, advise on local rules, and introduce lead counsel at the next court hearing. It could also mean that you are one of several primary counsel who happens to be the lawyer on the team barred in D.C. But no matter where you fall on the spectrum, you must be mindful of the ethical obligations that come along with that role.

In Ethics Opinion 387, the DC Bar addresses those ethical obligations of D.C. lawyers serving as local counsel. In truth, your ethical obligations aren’t much different whether you’re serving as lead counsel or local counsel. But serving as local counsel may place you in situations where the ethical rules may apply in unique ways. The Opinion provides a helpful checklist of concerns that may arise and ways to address them.

A. Scope of Representation

First and foremost, serving as local counsel may, and often does, constitute a limited representation under Rule 1.2(c), providing that “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Although serving as local counsel may not always be subject to Rule 1.2(c), the Opinion encourages communications with the client about the role the lawyer will undertake and to memorialize any limitations on that role in writing. This is in the lawyer’s interest because it may protect them from a malpractice claim for conduct by other counsel that is outside the scope of local counsel’s representation.

B. Duty to Communicate

The Opinion also emphasizes that, even where the scope duties are limited, local counsel nevertheless remains bound by Rule 1.4’s duties to keep the client reasonably informed, provide explanation sufficient to permit informed decisions by the client, and even to make sure the client receives settlement offers.

In practice, this would seem to put local counsel in an awkward position. Often, lead counsel hires local counsel, sometimes without local counsel ever speaking with the client. The lead counsel often has the relationship with the client and may be the most involved in the substance of the case. The Opinion recognizes this, advising that local and lead counsel coordinate at the outset how client communications will occur. And while “local counsel can generally rely on lead counsel’s representations that lead counsel will communicate relevant information to the client,” local counsel should stand ready to fulfill the duties of Rule 1.4 if he or she learns that lead counsel is not doing so.

C. Written Notice of Fees

While Rule 1.5(b) sets forth a lawyer’s duty to provide written notice of the fee structure, the Opinion recognizes that local counsel’s fees are sometimes billed through the lead counsel. In such cases, Rule 1.5(e)’s provisions on shared fees may govern. The important thing to keep in mind here is the required written disclosure to the client. As explained by Comment 14, that includes disclosing the identity of the lawyers sharing the fee, their respective responsibilities, and the effect of the association of lawyers outside the firm on the fee charged.

D. Conflicts of Interest

The normal conflict-of-interest rules still apply! Rules 1.7, 1.8, and 1.9 apply to local counsel regardless of the scope of their responsibilities. Attorneys approached to serve as local counsel must perform all the normal conflicts checks to avoid such conflicts. The Opinion is helpful, however, in explaining why principles of imputed disqualification do not apply to a local-lead counsel relationship under Rule 1.10. So, even if lead counsel has a conflict, that conflict is not imputed to local counsel in a different firm.

E. Duties to the Court

A lawyer’s duties to the court are not dissipated by the fact that the lawyer is serving only as local counsel. Local counsel must refrain from signing on to frivolous claims, pleadings, motions, etc., under Rule 3.1, regardless of whether he or she participates substantively in the case. Similarly, local counsel must attempt to remediate a fraud perpetrated upon the court (while abiding by the duty of confidentiality under Rule 1.6) just the same as if he or she is lead counsel, as explained in Comment 12 to Rule 3.3.

F. Duties Upon Withdrawal

If the lawyer has entered an appearance in a case, he or she must abide by the court’s rules regarding withdrawal, whether serving as local or lead counsel. And if the lawyer concludes that he or she has a right or duty to withdraw under Rule 1.16(a), they must inform the client and lead counsel in a timely manner.

G. Reporting Professional Misconduct

And, finally, local counsel has a duty to make reasonable efforts to ensure that lead counsel conforms with the D.C. Rules of Professional Conduct, both under Rule 5.1(b) and D.C. Court of Appeals Rule 49(c)(7)(A)(ii). This obligation under Rule 5.1(b) is not exactly clear from the text, which might be read to apply mainly to partner supervision of associates, for example, but the Opinion makes clear that it applies to local counsel’s supervision of lead counsel as well.

Local counsel is also bound by Rule 8.3, which obligates a lawyer to report violations of the Rules of Professional Conduct that raise substantial questions about the lawyer’s honesty, trustworthiness, or fitness as a lawyer. However, the Opinion notes that such a reporting obligation does not require disclosure of information protected by Rule 1.6 and that local counsel must obtain the informed consent of the client before reporting misconduct by lead counsel.

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In sum, the D.C. Rules of Professional Conduct do not distinguish between local and lead counsel. If anything, the onus on a lawyer serving as local counsel is even greater because he or she not only must abide by the rules themselves; they must also make reasonable efforts to ensure that the lead counsel does as well.

January 25, 2024