Am I my brother’s keeper?
-Cain-
Tennessee Supreme Court Rule 19 sets forth all the obligations for an out-of-state lawyer who wishes to appear in a Tennessee court or administrative proceeding. There are few guidelines in the Rule, however, setting forth the obligations of the Tennessee lawyer who associates with the pro hac vice counsel. We know the local counsel must be licensed to practice law in Tennessee and must reside in and maintain an office in Tennessee. Rule 19 further states that local counsel must sign all pleadings, motions, or other papers filed or served in the proceeding and must personally appear with the pro hac vice counsel in all court or agency proceedings. Well…..that’s it. Have a nice day.
Not so fast, my friend! Don’t forget about the obligations which exist in the Rules of Professional Conduct. The key principal to remember is that by signing all papers filed with the court, local counsel is not only assuming representation of the client, but is certifying to the court that the document meets the requirements of Rule of Professional Conduct 3.1 (meritorious claims and contentions). See Tenn. R. Civ. Pro. 11.02.
Let’s begin with the obvious…..or…..perhaps the not so obvious. Local counsel in a pro hac vice representation has the same ethical obligations as in every other legal matter in which the attorney appears. The attorney-client relationship is sacrosanct and cannot be subsidiary to local counsel’s obligations. I have seen situations where the pro hac vice counsel advised local counsel that all client communications would go through his office, and then deadlines were missed or actions were taken without client consent. This can have severe ramifications for both counsel and client. Local counsel should, at a minimum, be copied on all client communications.
It is important that the client is not only aware of local counsel’s role in the representation, but also that any limitations be adequately communicated to the client. RPC 1.2(c) does not require that the limitations in scope be in writing, but it is strongly recommended. “Regardless of any limited scope representation agreement, if local counsel determines that the pro hac vice attorney is engaging in conduct that is likely to seriously prejudice the client’s interests, or the administration of justice, local counsel must communicate local counsel’s independent judgment to the client, and, if necessary, to the court or tribunal.”1 Further, the lawyers will need to set forth the division of their fees in a writing signed by the client if they are not in the same firm. Since the lawyers will both be officially counsel of record before the court that will satisfy the joint responsibility requirement under the rule. The attorneys are then free to split the fee in any manner they choose as long as the client is in agreement and the total fee is reasonable.
Local counsel also have an obligation to the court to ensure that all pleadings are thoroughly reviewed and a reasonable inquiry is made to support the basis in law and facts supporting the client’s position. The local counsel role is not a minor undertaking and he or she can be sanctioned if a frivolous position is pursued. Such was the case in Tennessee in Val-Land Farms, Inc. v. Third National Bank in Knoxville, 937 F.2d 1110 (6th Cir. 1991). In that case, a Chicago lawyer represented the plaintiffs in a pro hac vice capacity with two Tennessee attorneys serving as local counsel. The complaint asserted two claims; the first of which was dismissed upon motion and the second dismissed upon summary judgment. Counsel for the defendant made application for Rule 11 sanctions on both counts. The court awarded sanctions on the first count against plaintiffs’ counsel but not the second. On appeal, the court affirmed the decision of the trial court stating, “[t]hat claim was a loser from the start and plaintiffs’ attorneys should have known it. Their contention that the [defendant] bank was a potato dealer was (and is) ludicrous.”2 Local counsel argued that they should have been entitled to a hearing to determine the degree of their involvement in the filed pleadings or motions found to violate the rule. The court rejected the argument finding that lawyers have an obligation when they sign and certify a pleading and Rule 11 did not provide a safe harbor for lawyers who instead rely upon the representations of outside counsel.
The last practice pointer I want to raise here is a simple one but is often overlooked and many times disregarded. Local counsel are responsible for ensuring that pro hac vice counsel conform to Tennessee Supreme Court Rule 19 and the Rules of Professional Conduct. Local counsel should check at the beginning of every calendar year to make sure that pro hac vice counsel has renewed his or her registration with the Board of Professional Responsibility. I have seen situations where local counsel assisted pro hac vice counsel in a pending civil action for years after pro hac vice counsel’s registration had expired. Although the intent in such matters often is unknowing, it certainly rises to negligent and even reckless behavior, especially considering the ease in making such annual check with the Board of Professional Responsibility’s website.
Serving as local counsel can be beneficial to both client and counsel, but is not without risks. Understand your role, set forth any agreements in writing when possible, and communicate effectively with both counsel and client to avoid any unnecessary problems.
1 See Utah State Bar Ethics Advisory Opinion 17-04 (September 26, 2017)
2 Val-Land Farms, Inc. at 1117