Court Reminds "Forwarding Counsel" of "Local Counsel" DutiesBy William J. Cantrell, Litigation News Associate Editor – March 15, 2010
While use of the term “local counsel” is commonplace, Vice-Chancellor J. Travis Laster of the Delaware Chancery Court has sent a reminder that all counsel of record are fully responsible for the positions taken, the presentation of the case, and the conduct of the litigation.
Responding to a request [PDF] by a plaintiff’s attorney to permit “substitute local counsel” to attend a hearing, Laster said, “Because the letter uses the phrase ‘local counsel,’ I believe it important to make clear that the Court of Chancery does not recognize the role. I am certainly familiar with the term, and I knew well that it is often used colloquially as if it were synonymous with ‘Delaware counsel.’ It is not.”
Delaware counsel are not mere mail drops, said Laster. “If a Delaware lawyer signs a pleading, submits a brief, or signs a discovery request or response, it is the Delaware lawyer that takes the positions set forth therein. This is true regardless of who prepared the initial draft or how the underlying work was allocated.”
Laster does recognize that Delaware counsel and forwarding counsel necessarily allocate responsibility for work and the allocation may be heavily weighted toward forwarding counsel. For instance, opines Laster, “Forwarding counsel may have primary responsibility for a matter from a client’s perspective, particularly if the Delaware litigation is one part of a larger picture. This is perfectly understandable, efficient, and appropriate.”
Impact on Local Counsel
“While the recent Chancery Court letter opinion raises the profile of the ‘local counsel’ issue, it does not represent a substantive change in the law,” says Mark S. Davidson, Seattle, cochair of the ABA Section of Litigation’s Business Torts Committee.
“Although ‘national counsel’ proliferate, especially in the areas of mass torts and class actions, jurisdictional distinctions remain, not only with respect to the admission to practice but also in terms of substantive law and procedural rules,” says Davidson.
Richard Horwitz, Wilmington, DE, cochair of the Section’s Corporate Counsel Committee, agrees that “local” counsel add value and efficiency for out-of-state counsel, and that “the role of ‘local counsel’ in Delaware is not headed toward extinction. “To the contrary, our judges continue to look to Delaware lawyers to ensure that proceedings go forward on the merits in a professional and efficient manner,” Horwitz says.
Indeed, “clients often want someone local who knows the judge, the local conventions, and the jurors’ potential biases,” says Andrew Pollis, Cleveland, cochair of the Section’s Ethics and Professionalism Committee.
“If anything, it is the utility of having local counsel that has diminished, by virtue of electronic filing and the like—which make it easier to practice from afar,” says Pollis.
Best Practices for Forwarding and Local Counsel
When considering best practices for out-of-state and in-state counsel, Horwitz advises that, in addition to delineating the roles and expectations of counsel up front, “local counsel should be involved from the outset, to discuss case strategy and planning, and to make sure that the client has realistic expectations about how a case will go.”
“Even if local counsel takes few or no depositions, primary counsel should keep local counsel informed about strategy and tactics in discovery, so their client can avoid traps or discovery disputes that might be very costly, both in terms of expense as well as credibility with the court. Finally, as a case proceeds to trial, it is important to keep local counsel involved because they know the court and the jury pool, and can tell a client what will work and what won’t,” says Horwitz.
Davidson adds that “while their respective roles in the litigation need not be equal, out-of-state counsel should never treat local counsel as a ‘mail drop,’ and local counsel should never agree to serve in such a limited role.”
Keywords: Delaware Chancery Court, forwarding counsel, local counsel
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