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ISBA 2024-03-01

What are the ethical duties of an Illinois lawyer who serves as local counsel for an out-of-state lawyer in an Illinois state-court criminal matter, and may local counsel limit attendance at court proceedings?

Short answer: The opinion concludes local counsel owes the client the same duties as lead counsel under the Illinois Rules. Local counsel and the client may agree in writing to limit scope under Rule 1.2(c), but Illinois criminal cases allow only a general appearance (no limited-scope appearance), and the court may require local counsel's participation regardless of the agreement. Local counsel is sanctionable only for own conduct, but signing a pleading triggers Supreme Court Rule 137 duties, and 'willful blindness' or ratification of lead counsel's violations creates exposure.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

ISBA Ethics Opinion 24-01: Local Counsel in an Illinois Criminal Matter for Out-of-State Lead Counsel

Short answer: Per the Committee, an Illinois lawyer serving as local counsel in an Illinois state-court criminal matter owes the client the same duties of competence, diligence, and communication as out-of-state lead counsel. Local counsel and the client may agree under Rule 1.2(c) to limit scope, but no Illinois rule allows a limited-scope appearance in a criminal case, so local counsel may only enter a general appearance. The presiding court may require local counsel's participation regardless of the agreement. Local counsel is disciplinable only for own conduct, but signing a pleading triggers Illinois Supreme Court Rule 137 duties and "willful blindness" or ratification of lead counsel's misconduct creates exposure.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Illinois Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

The inquiring lawyer was already representing a client in an Order of Protection matter when out-of-state counsel asked the lawyer to serve as local counsel in the client's pending Illinois felony criminal case. The Committee addresses three questions: what duties local counsel owes; whether local counsel must appear at all hearings, including trial; and what responsibilities and liabilities local counsel has for decisions made by out-of-state lead counsel.

On duties, the Committee reads Illinois Rules 1.1 (competence), 1.3 (diligence), and 1.4 (communication) as making no distinction between local and lead counsel. The Committee aligns its analysis with NYCBA Formal Opinion 2015-4, Utah State Bar Opinion 17-04 (2017), and Best Practices in the Michigan Bar Journal (December 2020), each of which treats local counsel as ethically equivalent to lead counsel under the Model-Rule framework. Per the Committee, the client-lawyer agreement may define local counsel's tasks, and the agreement between lead counsel and local counsel may further allocate roles, but neither agreement can limit duties to the court or the underlying client-facing duties.

On limiting scope, the Committee distinguishes the limited-scope agreement with the client (permitted under Rule 1.2(c) if reasonable and the client gives informed consent) from a limited-scope appearance in court. Illinois Supreme Court Rule 13(c)(6) authorizes limited-scope appearances in civil matters; no corresponding rule exists for criminal cases. Per the opinion, local counsel may only enter a general appearance in an Illinois state-court criminal matter. The Committee cites N.Y. State 856 (2011) and N.Y. State 1215 (2011) for the related principles that the scope of representation in criminal cases must be broad enough to support competent service and that the lawyer must disclose "reasonably foreseeable consequences" of any limitation, including that the court may require attendance.

On pleadings, the Committee identifies Illinois Supreme Court Rule 137 as the operative source. Per Rule 137, signing a pleading is a certification that the signer has read it and made a reasonable inquiry into its grounding. The opinion cites BVM Olenti, Inc. v. Huttinger (2d Dist. 2012, Rule 23 order) for the proposition that local counsel "is not an 'ignorant surrogate'" and may not sign a complaint drafted by an out-of-state lawyer without substantive knowledge.

On responsibility for lead counsel's conduct, the Committee draws on State Bar of Georgia FAO 05-10 (2006) for the framework: an Illinois lawyer is disciplinable for own conduct, not for the acts of out-of-state counsel, but "actual knowledge," "willful blindness," and "ratification" of lead counsel's violations all expose local counsel. The opinion treats reasonable suspicion as triggering a duty to inquire, citing the Georgia opinion's warning that avoiding actual knowledge "displays the same level of culpability as actual knowledge." The Committee notes In re Barinholtz (ARDC Review Board, July 12, 2013) as an example where local counsel was reprimanded under Rule 8.4(a)(5) for failing to act after learning of lead counsel's misconduct, and James v. National Financial LLC (Del. Ch. 2014) as an out-of-state example sanctioning a local lawyer who "acted as a mail drop."

On attendance, the Committee concludes there is no rule requiring local counsel to appear at every hearing or at trial, but the lawyer's presence may be required if (1) the client's engagement agreement requires it, (2) the court specifically requires it, or (3) nonattendance would be unreasonable or prejudicial to the administration of justice under Rule 8.4(d). The opinion recommends local counsel inform the court of the limited-capacity retention at the outset and ask that this be noted in the record.

In practice

Under this opinion, an Illinois lawyer who agrees to serve as local counsel in a state-court criminal matter takes on the full Rule 1.1, 1.3, and 1.4 duties to the client. The Committee directs the lawyer to enter a general appearance (no limited-scope appearance is available), to define scope with the client by written agreement reflecting informed consent under Rule 1.2(c), and to plan for the possibility that the court will require participation beyond the agreement.

Per the opinion, signing any pleading carries Rule 137 certification consequences. Local counsel who continues to act after learning that lead counsel is acting improperly faces discipline under Rule 8.4(a)(5) and the willful-blindness/ratification analysis the Committee adopted from State Bar of Georgia FAO 05-10. If lead counsel withdraws or is disqualified, local counsel may be required to withdraw as well unless prepared to act as lead counsel, citing Pratt-Holdampf v. Trinity Medical Center (3d Dist. 2003).

Common questions

Q: Can local counsel agree with the client to skip all court appearances?

A: Per the opinion, no. Although Rule 1.2(c) allows scope-limiting agreements, the agreement cannot bind the court, and the court may require local counsel's participation. The opinion identifies three triggers: client requires it, court specifically requires it, or nonattendance would be prejudicial under Rule 8.4(d).

Q: Are limited-scope appearances available in Illinois criminal cases?

A: The opinion concludes no. Illinois Supreme Court Rule 13(c)(6) permits limited-scope appearances in civil cases, but no parallel rule exists for criminal cases. Local counsel may only enter a general appearance.

Q: Is local counsel responsible for lead counsel's strategic mistakes?

A: Per the opinion, no for strategic decisions alone. Illinois lawyers are not held to be ineffective solely for strategic decisions in criminal matters (People v. Custer; Hobley; Sims). Local counsel is disciplinable only for own conduct.

Q: What happens if local counsel signs a pleading prepared by lead counsel?

A: The opinion concludes Rule 137 applies: the signature is a certification that the signer has read the pleading and that "to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact." Per BVM Olenti, an Illinois lawyer who signs without substantive knowledge "act[s] incompetently."

Q: When does local counsel become exposed to discipline for lead counsel's conduct?

A: Per the Committee, when local counsel has actual knowledge of lead counsel's violation, engages in willful blindness (avoiding inquiry despite reasonable suspicion), or ratifies the violation. The Committee draws this taxonomy from State Bar of Georgia FAO 05-10 (2006) and In re Barinholtz (ARDC Review Board, July 12, 2013).

Q: If lead counsel withdraws, must local counsel withdraw too?

A: Per the opinion, local counsel may be required to withdraw unless prepared to act as lead counsel. The opinion cites Pratt-Holdampf v. Trinity Medical Center (3d Dist. 2003) for the proposition that the court granted local counsel's motion to withdraw after lead counsel withdrew and represented he lacked the expertise to continue.

Background and rules framework

The opinion interprets Illinois Rules 1.1 (competence), 1.2(c) (limited-scope representation), 1.3 (diligence), 1.4 and 1.4(b) (client communication and information for informed decision-making), and 8.4(a)(5) and (d) (conduct prejudicial to administration of justice). Illinois Supreme Court Rule 137 governs pleading-signature obligations; Illinois Supreme Court Rule 13(c)(6) authorizes limited-scope appearances in civil cases; Illinois Supreme Court Rule 707 governs pro hac vice admission. The Committee draws analytical support from out-of-state bar opinions (NYCBA 2015-4, Utah 17-04 (2017), N.Y. State 856 (2011) and 1215 (2011), State Bar of Georgia FAO 05-10 (2006)) and from Illinois and out-of-state cases on local-counsel responsibility.

Citations and references

Rules of Professional Conduct:

  • Illinois Rule 1.1 (competence)
  • Illinois Rule 1.2(c) (limited-scope representation)
  • Illinois Rule 1.3 (diligence)
  • Illinois Rule 1.4, 1.4(b) (communication)
  • Illinois Rule 8.4(a)(5), (d) (conduct prejudicial to administration of justice)

Court rules:

  • Illinois Supreme Court Rule 13(c)(6) (limited-scope appearance, civil)
  • Illinois Supreme Court Rule 137 (pleading-signature certification)
  • Illinois Supreme Court Rule 707 (pro hac vice)
  • Del. Ch. Ct. R. 170 (cited from James)

Cases:

  • People v. Greer, 79 Ill.2d 103 (1980) (incompetent representation standard in criminal cases)
  • Pratt-Holdampf v. Trinity Medical Center, 338 Ill.App.3d 1079 (3rd Dist. 2003)
  • People v. Custer, 2019 IL 12339
  • People v. Hobley, 159 Ill.2d 272 (1994)
  • People v. Sims, 167 Ill.2d 483 (1995)
  • BVM Olenti, Inc. v. Huttinger, 2012 IL App (2d) 110918-U
  • Cruzat v. Board of Trustees, 126 Ill.App.3d 717 (1st Dist. 1984)
  • In re Barinholtz, ARDC 2010PR00070 (Review Bd., July 12, 2013)
  • James v. National Financial LLC, 2014 Del. Ch. LEXIS 254
  • Hsu v. Great Seneca Fin. Corp., 9 A.3d 476 (Del. 2010)

Other opinions cited:

  • NYCBA Formal Opinion 2015-4: local counsel held to same standard as lead counsel.
  • Utah State Bar Opinion 17-04 (2017): local counsel "not a minor or perfunctory undertaking."
  • N.Y. State 856 (2011): scope of criminal representation must be broad enough to render competent service.
  • N.Y. State 1215 (2011): disclosure of foreseeable consequences of limitation required.
  • State Bar of Georgia Formal Advisory Opinion 05-10 (2006): "actual knowledge," "willful blindness," and "ratification" taxonomy for local-counsel liability.

See also

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