Not-so-limited role and exposure of local counsel

By William C. Saturley and Bernard D. Posner Dolan Media Newswires A lawyer from a different state asks you to serve as local counsel in a transaction or litigated matter. He just wants you to file recording instruments or pleadings with the court. He wants to structure the transaction or run the litigation, negotiate the terms or conduct the discovery, and, above all, maintain all the client contact. After a conflict check, you agree. That scenario seems to benefit everyone involved. The client continues with the original attorney and gets your insight into local rules, politics and procedure; you get a fee. But what happens if a deadline is blown? You may think lead counsel is solely responsible if something goes wrong; after all, he was primarily in charge and kept you on the outskirts. The client may think otherwise, however, having been unaware of the division of labor between the attorneys. Courts, too, increasingly see the lawyer's role as all-inclusive. The American Bar Association Rules of Professional Conduct suggest you shoulder broader responsibilities when you took on this role than you may have imagined. See, for example, Rule 1.1, which, in many states, requires the lawyer to identify areas beyond his competence and to bring those areas to the client's attention; and Rule 1.4, which requires the lawyer to keep the client reasonably informed about its matter. Local counsel increasingly finds itself the target of legal malpractice litigation. There are some simple steps you can take to minimize the risk of exposure when you find yourself in that role. * Discuss the scope of your representation -- and your specific responsibilities --before you undertake the case. Have a detailed discussion with lead counsel regarding the scope of your representation. Specifically cover the tasks involved in the case and who will assume responsibility for those tasks. Define the means and frequency of communication with the client. Cover issues such as those before you start to work on the case so there will be less confusion during the work and fewer regrets afterward. * Define in writing the scope of your involvement. The decisions and agreements reached should be put into writing. Ideally, the client signs a letter acknowledging the precise scope of your responsibilities during the case. Some versions of the Rules of Professional Conduct, Rule 1.2(c), contemplate such arrangements, which allow a lawyer to "limit the scope of the representation if the limitation is reasonable and the client gives informed consent." Without such a letter, consider executing a memorandum of understanding with lead counsel, to delineate the exact scope of your representation and your responsibilities during the case. Send it to the client. Amend the letter or memo as the tasks develop. * Make sure that you understand the documents you sign and file.Even with such an arrangement, the court -- and likely the client -- will hold you responsible for the contents of pleadings you sign. Under Rule 11 of the Federal Rules of Civil Procedure, and many state analogs, your signature certifies your belief, after a reasonable inquiry, that the pleading is presented for no improper purpose, such as unnecessary delay or to increase the cost of the litigation; that the contentions are warranted by existing law or by a non-frivolous argument concerning the law; and that there is evidentiary support for the contentions, or likely will be after an opportunity for discovery. * Stay involved and informed. Do your best to establish a direct line of communication with the client. If this is impractical or unwelcomed by lead counsel, make sure the client and lead counsel are at least copying you on correspondence and pleadings. If lead counsel's actions or inactions pose a risk to the client's interests, and lead counsel fails to adequately respond to your concerns, you may have to consider direct communication with the client. * Involve your broker and malpractice carrier's risk management team. Whatever the percentage of your time spent as local counsel, you will be better off with engagement letters and specific delineations of your authority, especially if they include direct client consent. Your broker or malpractice insurer should be able to provide you with sample forms and guidance in maneuvering through these politically sensitive waters. Conclusion-- The increasing frequency of malpractice litigation against attorneys includes local counsel as targets. By following the preceding steps, you can better communicate with the client and your fellow counsel, enhance the quality of the representation and minimize your risks. William C. Saturley and Bernard D. Posner work in the business litigation and professional liability practice groups at Nelson, Kinder, Mosseau & Saturley in Boston. Saturley can be contacted at wsaturley@ nkms.com; Posner is at bposner@nkms.com. Entire contents copyrighted © 2010 by Dolan Media Company. All rights reserved. Reproduction in whole or in part without written permission is expressly forbidden. Published: Thu, May 20, 2010

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