When a D.C. lawyer serves as local counsel for an out-of-state lead attorney litigating in a D.C. court, what ethics duties does the local counsel keep?

Plain-English summary

Opinion 387 (published January 2024) addresses the ethical obligations of a D.C. lawyer serving as local counsel for an out-of-state "lead counsel" litigating in a D.C. court. The Committee notes that "local counsel" is not defined in the D.C. Rules and that local counsel does not represent lead counsel; both represent the mutual client. Under DCCA Rule 49(c)(7), as amended in 2022, a pro hac vice applicant must arrange to be supervised by a D.C. Bar member, with "supervise" defined as making reasonable efforts to ensure another person conforms to the applicable Rules. The opinion's through-line is that a "local counsel" designation does not diminish a lawyer's obligations under the D.C. Rules.

The opinion walks through several duties. On scope, the opinion concludes a local counsel may limit the scope under Rule 1.2(c) if reasonable and the client gives informed consent, and it calls memorializing the limited role in writing a preferable practice that can protect against malpractice claims arising from lead counsel's missteps. On communication, the opinion concludes Rule 1.4 duties cannot be delegated or contractually diminished; lead counsel may reasonably take primary responsibility for client contact, but if local counsel learns the client is not being adequately informed she must act, and she is generally regarded as the expert on D.C. rules and practice. On fees, the opinion concludes Rule 1.5(b) requires written notice of the fee basis, and where lead counsel bills the client and the lawyers are not in the same firm, Rule 1.5(e) requires written disclosure of the lawyers' identities and division of responsibility plus the client's informed consent.

On conflicts, the opinion concludes Rules 1.7, 1.8, and 1.9 apply to local counsel regardless of the division of labor, but imputation under Rule 1.10 typically does not apply between unaffiliated local and lead counsel, who are treated like a temporary contract lawyer segregated from the other firm's confidences. On duties to the court, the opinion concludes local counsel has nondelegable obligations under Rule 3.1 (no frivolous filings) and Rule 3.3 (remedial measures for fraud on the court, within Rule 1.6 limits). On withdrawal, local counsel who has appeared must follow the tribunal's withdrawal rules and timely inform the client and lead counsel. On reporting, the opinion concludes Rule 8.3 requires reporting another lawyer's substantial misconduct, but not information protected by Rule 1.6, so local counsel would generally need the client's informed consent before reporting lead counsel's misconduct that occurred during the representation.

In practice

Under this opinion, a D.C. lawyer who agrees to serve as local counsel cannot treat the role as a way to shed responsibility. The opinion concludes the lawyer keeps Rule 1.4 communication duties, Rule 1.5(b) and 1.5(e) written fee and fee-division disclosure duties, conflicts obligations under Rules 1.7 to 1.9, and duties to the court under Rules 3.1 and 3.3, all notwithstanding the "local counsel" label, and must make reasonable efforts under Rule 5.1(b) and DCCA Rule 49(c)(7) to ensure lead counsel conforms to the D.C. Rules.

The opinion identifies several practices it characterizes as preferable: putting any limited scope in a writing the client consents to, resolving at the outset which lawyer communicates with the client, ensuring the client receives written notice of the fee-division arrangement, and limiting each lawyer's conflicts review to her own firm where local and lead counsel are unaffiliated. The opinion concludes that if local counsel learns the client is not being adequately informed or that lead counsel has engaged in conduct seriously prejudicial to the client, she must step in, and that reporting lead counsel's misconduct generally requires the client's informed consent where Rule 1.6 information is involved.

Common questions

Q: Does calling myself "local counsel" limit my ethical duties?

A: No. The opinion concludes the D.C. Rules make no distinction between local and lead counsel, so a local counsel's obligations under the Rules remain intact regardless of the designation or the division of responsibilities.

Q: Can I limit my role as local counsel, and how?

A: The opinion concludes a lawyer may limit the scope under Rule 1.2(c) if the limitation is reasonable and the client gives informed consent, and it calls putting the limited role in a writing to the client a preferable practice that can guard against malpractice claims based on lead counsel's missteps.

Q: Who handles client communication, me or lead counsel?

A: The opinion concludes Rule 1.4 duties cannot be delegated away; lead counsel may reasonably take primary responsibility, but local and lead counsel should agree at the outset, and if local counsel learns the client is not being adequately informed she must take steps to ensure the client is apprised.

Q: If lead counsel bills the client, what do I have to disclose about fees?

A: The opinion concludes Rule 1.5(b) requires written notice of the fee basis, and because local and lead counsel are usually not in the same firm, Rule 1.5(e) requires written disclosure of the lawyers' identities and division of responsibility and the client's informed consent.

Q: Are my conflicts imputed to lead counsel's firm, or theirs to me?

A: The opinion concludes that imputation under Rule 1.10 typically does not apply between unaffiliated local and lead counsel; each is treated like a temporary contract lawyer, so each lawyer's conflicts review is generally limited to her own firm's representations.

Q: If lead counsel commits misconduct, do I have to report it?

A: The opinion concludes Rule 8.3 requires reporting another lawyer's substantial misconduct but not information protected by Rule 1.6, so local counsel would generally need the client's informed consent before reporting lead counsel's misconduct that occurred during the representation.

Background and rules framework

The opinion applies the D.C. Rules to the local-counsel role and reads them alongside DCCA Rule 49(c)(7), which (as amended in 2022) requires a pro hac vice attorney to be "supervised" by a D.C. Bar member, defined as making reasonable efforts to ensure conformance with the Rules. Rule 1.2(c) governs limiting the scope of representation; Rule 1.4 governs communication; Rule 1.5(b) and (e) govern written fee notice and fee division between lawyers not in the same firm; Rules 1.7 and 1.9 govern conflicts and Rule 1.10 governs imputation; Rule 3.1 governs non-frivolous filings and Rule 3.3 candor to the tribunal; Rule 5.1(b) governs supervisory responsibility; and Rule 8.3 governs reporting misconduct.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 5.1(b) / Model Rule 5.1 (supervising lead counsel; reasonable efforts to ensure conformance)
• D.C. RPC 1.2(c) / Model Rule 1.2 (limited scope of representation)
• D.C. RPC 1.4 / Model Rule 1.4 (communication with the client)
• D.C. RPC 1.5(b), (e) / Model Rule 1.5 (written fee notice; division of fees)
• D.C. RPC 1.7, 1.9, 1.10 / Model Rules 1.7, 1.9, 1.10 (conflicts and imputation)
• D.C. RPC 3.1, 3.3 / Model Rules 3.1, 3.3 (non-frivolous claims; candor to the tribunal)
• D.C. RPC 8.3 / Model Rule 8.3 (reporting professional misconduct)
• DCCA Rule 49(c)(7) (pro hac vice admission and supervision)

Cases:

• In re Bailey, 283 A.3d 1199 (D.C. 2022), a lawyer's ethical obligations are not altered by a "local co-counsel" designation
• In re Fay, 111 A.3d 1025 (D.C. 2015), a lawyer aiding lead counsel assumes the ethical responsibilities of counsel
• In re Confidential (J.E.S.), 670 A.2d 1343 (D.C. 1996), admonition for failing to meet Rule 1.5(e)(2) fee-division disclosure

Other opinions cited:

• NYC Bar Formal Op. 2015-4: duties of local counsel
• Philadelphia Bar Op. 2019-1; N.M. Formal Op. 2020-01; Utah Op. 17-09: local counsel keeps full duties
• D.C. Bar Ethics Ops. 255 (1995), 330 (2005), and 352 (2010): ad hoc association and imputation; limited scope representation

See also

• NYC Bar Ethics Op. 2015-4: Duties of Local Counsel
• ISBA Op. 24-01: Illinois Lawyer Acting as Local Counsel in a Criminal Matter
• Ohio BPC Op. 2002-006: Soliciting Appellate or Local Counsel Engagements

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-387