City Bar Formal Ethics Opinion: The Ethical Duties of Local Counsel

The New York City Bar Association’s Committee on Professional Ethics has issued Formal Opinion (2015-4), stating that attorneys who act as “local counsel” are subject to the same ethical rules as all lawyers. Local counsel may circumscribe their role, however, by entering into an agreement to limit the scope of representation, provided the agreement complies with Rule 1.2(c) of New York Rules of Professional Conduct. “It is the attorney’s obligation to communicate to the client any limits on the scope of the representation, rather than to rely on undefined terms, such as ‘local counsel.’ Any limitations to the scope of representation must be reasonable under the circumstances and the client must give informed consent,” states the Opinion. Local counsel must also comply with any relevant court rules governing the responsibilities of counsel. Lawyers have traditionally used the designation “local counsel” to describe an attorney who provides assistance on a matter within their jurisdiction, while the attorney primarily responsible for the matter, or “lead counsel,” practices in a different jurisdiction. Yet the New York Rules do not distinguish between different categories of lawyers. All lawyers are ethically obligated to provide “competent” and “diligent” representation to their clients (Rules 1.1 and 1.3), and merely being designated as “local counsel” does not necessarily limit the attorney’s role or narrow their ethical obligations. Consequently, states the Opinion, “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.” New York attorneys may reduce some of these risks by entering into an agreement to limit the scope of representation under Rule 1.2(c), which does not absolve a lawyer from her ethical duties, but rather “narrows the universe within which those ethical obligations apply,” by limiting the lawyer’s role in the matter and specifying the lawyer’s tasks. As the Opinion notes, “A written agreement that clearly limits the role of local counsel can benefit all parties by managing expectations, avoiding misunderstandings about the scope of the lawyer’s responsibilities, minimizing disputes over the allocation of responsibility between lead counsel and local counsel, and managing costs.” Local counsel are obligated to ensure that their role is clearly defined, and that any limitations on the scope of representation are communicated to the client and the client gives “informed consent,” as stated in Rule 1.2(c). “Preferably, local counsel will enter into an independent written retainer agreement with the client,” notes the Opinion. Nevertheless, “given the long-standing, customary practice of lead counsel acting as intermediary between local counsel and the client, we believe a written agreement between local counsel and lead counsel may fulfill the requirements.” Although Rule 1.2(c) gives lawyers and clients significant flexibility in defining the scope of representation, any limitations must be “reasonable under the circumstances.” As noted in Comment [7] to the Rule, “an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation.” Also, certain ethical obligations may not be limited by contract. “For example, a lawyer may not agree to circumvent rules concerning candor to the court or to third parties,” states the Opinion. “In addition, the lawyer should consider the impact of local court rules, as well as the judge’s individual rules and procedures, on the scope of representation.” For example, many judges require that an attorney with knowledge of the case appear at all conferences. In the event that local counsel represents a client at court conferences, she would be required to have “sufficient knowledge of the case to comply with these requirements, regardless of the terms of her retainer agreement,” states the Opinion. “Having assumed responsibility for certain tasks, local counsel is obligated to keep the client informed of any developments relating to those tasks,” according to the Opinion. “The limited scope agreement should specify who will be responsible for communicating with the client about these tasks. Assuming the agreement delegates that role to lead counsel, local counsel may reasonably rely on lead counsel’s representations that he has conveyed the information to the client. Nevertheless, local counsel cannot completely abdicate responsibility for ensuring that the client receives the information. In our view, such a limitation would not be reasonable under the circumstances. Therefore, if local counsel knows or has reason to know that lead counsel is not adequately updating the client concerning the case, she must take steps to remedy the omission, even if it means bypassing lead counsel and communicating directly with the client.” The opinion can be read here: http://bit.ly/1EWSUwN