Ethics Opinion 387

Serving as Local Counsel for a Matter Being Litigated in a District of Columbia Court

The D.C. Bar Legal Ethics Helpline regularly receives calls from D.C. lawyers seeking clarification regarding their ethical obligations when they serve as local counsel for lawyers not admitted to practice in the District of Columbia. This Opinion addresses the ethical obligations of D.C. lawyers who are serving as local counsel in matters litigated in District of Columbia courts.  It draws on an article by D.C. Bar legal ethics counsel that appeared in the July/August 2022 edition of Washington Lawyer. ¹

Applicable Rules

• 1.0 (Terminology)
• 1.1 (Competence)
• 1.2 (Scope of Representation)
• 1.3 (Diligence and Zeal)
• 1.4 (Communication)
• 1.5 (Fees)
• 1.6 (Confidentiality of Information)
• 1.7 (Conflict of Interest: General)
• 1.9 (Conflict of Interest: Former Client)
• 1.10 (Imputed Disqualification: General Rule)
• 3.1 (Meritorious Claims and Contentions)
• 3.3 (Candor to Tribunal)
• 4.1 (Truthfulness in Statements to Others)
• 5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers)
• 8.3 (Reporting Professional Misconduct)

Discussion

Although not defined in the D.C. Rules of Professional Conduct,² the term “local counsel” is commonly used in the District of Columbia to describe a D.C. lawyer who has been engaged by a client that wants to litigate a case before a D.C. tribunal using the client’s out-of-state attorney as primary counsel.³ Local counsel commonly helps the out-of-state attorney, or “lead counsel,” to obtain pro hac vice admission to the local courts per D.C. Court of Appeals (DCCA) Rule 49(c)(7).⁴ Local counsel does not represent lead counsel; rather, both local counsel and lead counsel represent the mutual client.  Local counsel is not typically affiliated with the out-of-state attorney, but a D.C. attorney can serve as local counsel to other lawyers from the D.C. attorney’s firm who are seeking pro hac vice admission to D.C. courts.

DCCA Rule 49(c)(7) provides limited guidance regarding the duties of D.C. local counsel. The rule, which was amended in June 2022,⁵ requires a pro hac vice applicant to “arrange[] to be supervised . . . by a D.C. Bar Member”⁶ and  defines “supervise” as “mak[ing] reasonable efforts to ensure that another person conforms to the applicable Rules of Professional Conduct.”⁷

In its order adopting the Rule 49(c)(7) amendments, which were proposed by the D.C. Committee on Unauthorized Practice of Law (CUPL), the D.C. Court of Appeals explained:

• The requirements for “supervision” of a pro hac vice attorney by local counsel have been revised. D.C. App. R. 49(c)(7)(A)(ii). The current Rule refers to supervision by cross-referencing Super. Ct. Civ. R. 101. That Rule, however, was amended in 2020 to remove the supervision provisions. The prior version of R. 101 required local counsel to “at all times be prepared to go forward with the case, . . . sign all documents subsequently filed[,] and . . . attend all subsequent proceedings in the action unless this latter requirement is waived by the judge presiding at the proceedings in question.” Super. Ct. Civ. R. 101(a)(3) (2019). The CUPL’s original proposal was to move the requirements of R. 101(a)(3) in this court’s rule. The CUPL has subsequently recommended that, instead of simply carrying forward the requirements of a Superior Court rule that is no longer in effect, the court should replace those requirements with the requirement that the local attorney agree to “supervise” the pro hac vice attorney, with “supervise” defined to mean “to make reasonable efforts to ensure that another person conforms to the applicable Rules of Professional Conduct.” D.C. App. R. 49(b)(9). The court adopts the latter approach.⁸

Despite the paucity of guidance regarding the specific duties of local counsel beyond “mak[ing] reasonable efforts to ensure [lead counsel] conforms to the applicable Rules of Professional Conduct,” a local counsel’s obligations under the D.C. Rules of Professional Conduct remain inviolable notwithstanding her designation as “local” counsel.⁹

This opinion highlights some of a local counsel’s duties to the client and to the court in the District of Columbia.

A. SCOPE OF REPRESENTATION

Local counsel’s role in a representation can range from narrowly limited to substantive and comparable to that of co-counsel or even lead counsel.  In some cases, the out-of-state attorney may assist only behind-the-scenes without seeking pro hac vice admission, so long as her involvement does not amount to unauthorized practice of law under Rule 49(a).

Where the local counsel’s role will be narrow, it is good practice for local counsel to explicitly limit the scope of his representation in writing.  Rule 1.2(c) states that “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”¹⁰ While we do not here opine on whether local counsel arrangements are always subject to Rule 1.2(c), it is advisable for lawyers who anticipate a limited “local counsel” role to communicate that understanding to the client and to obtain informed consent.

Memorializing the local counsel’s limited role in writing to the client is a preferable practice.¹¹ An engagement letter stating that the lawyer will be serving as “local counsel” to assist lead counsel and documenting that the client agreed to a narrow role for local counsel can protect local counsel from malpractice claims stemming from missteps made by lead counsel that are outside the scope of the local counsel’s responsibility.  Indeed, it is good practice for such an agreement to delineate the tasks (or the kinds of tasks) for which local counsel will be responsible, as well as those for which local counsel will not be responsible.  

If local counsel is working with lead counsel pursuant to a court order appointing counsel, the court’s order controls the scope of representation.  In complex litigation, courts will often define the responsibilities of lead counsel and limit the participation of attorneys not appointed to leadership roles.  A prudent practice would be to include any such limits, or incorporate them by reference, into the engagement letter.

B. DUTY TO COMMUNICATE

Regardless of the scope of local counsel’s participation in the representation, her ethical obligations to the client may not be delegated or contractually diminished.¹² For example, local counsel remains bound by Rule 1.4, which sets forth her duties of communication with the client:

• (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
  
  (b)  A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
  
  (c) A lawyer who receives an offer of settlement in a civil case or proffered plea bargain in a criminal case shall inform the client promptly of the substance of the communication.

Ideally, local counsel might regularly update the client jointly with lead counsel.  That said, it may be reasonable under Rule 1.4 for lead counsel to assume responsibility for client communications.¹³ Local and lead counsel should resolve at the outset of the representation their expectations about which lawyer should be in direct contact with the client and under what circumstances local counsel should contact the client directly.  Although local counsel can generally rely on lead counsel’s representations that lead counsel will communicate relevant information to the client, should local counsel learn that lead counsel’s communication did not occur or is otherwise insufficient to satisfy the rule, local counsel must take steps to ensure the client is fully apprised consistent with Rule 1.4.¹⁴ If the reason behind lead counsel’s failure to communicate with the client—or comply with any other D.C. Rule of Professional Conduct or regulation—stems from unawareness of the relevant D.C. rules or practices, local counsel should recognize that she is likely regarded as the expert on D.C. rules and practices, and should act accordingly.  Further, should local counsel become aware of any malfeasance or misfeasance by lead counsel that is seriously prejudicial to the client’s interests (e.g., willful disregard of court orders), local counsel has a duty to inform the client.¹⁵

In addition to communicating with the client, local counsel should also keep open channels of communication with lead counsel as they have a duty to work together and communicate with one another with the common goal of representing a client’s interests competently and diligently.¹⁶

C. WRITTEN NOTICE OF FEES

Rule 1.5(b) requires a lawyer who has not regularly represented a client to provide written notice to the client before or a reasonable time after the representation commences of “the basis or rate of the fee, the scope of the lawyer’s representation, and the expenses for which the client will be responsible.”¹⁷

Although local counsel may enter into a fee arrangement with the client that is separate from lead counsel’s, it is not uncommon for lead counsel to assume primary responsibility for billing the client.¹⁸ In such instances Rule 1.5(e), which pertains to fees shared between lawyers who are not in the same firm, requires that:

• (1) The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
  
  (2) The client is advised, in writing, of the identity of the lawyers who will participate in the representation, of the contemplated division of responsibility, and of the effect of the association of lawyers outside the firm on the fee to be charged;
  
  (3) The client gives informed consent to the arrangement; and
  
  (4) The total fee is reasonable.

As Comment [14] to Rule 1.5 notes, “[t]he Rule does not require disclosure to the client of the share that each lawyer is to receive but it does require the client be informed of the identity of the lawyers sharing the fee, their respective responsibilities in the representation, and the effect of the association of lawyers outside the firm of the fee charged.”  Further, it is not enough for local counsel to speak with the client about the local counsel arrangement or division of responsibilities; local counsel must ensure that the client receives written notice of the arrangement as “written disclosure is the crux of the rule.”¹⁹ Although the purpose of Rule 1.5(e) is to minimize controversy and protect clients from billing practices that serve only to drive up costs, the exercise of clearly delineating responsibility for the matter is particularly helpful in the context of lead counsel-local counsel relationships, as expectations of each may vary significantly with each new engagement.

D. CONFLICTS OF INTEREST

Lawyers approached to serve as local counsel must remember that the conflict of interest rules— D.C. Rules 1.7, 1.8, and 1.9— apply to them regardless of the division of responsibilities between local and lead counsel.²⁰

Principles of imputed disqualification do not typically apply to a local counsel-lead counsel arrangement when local counsel is not associated with lead counsel or her law firm.  Under Rule 1.10, a lawyer’s conflicts are imputed to all lawyers within a firm when the lawyer is deemed “associated with” the firm.  Although DCCA Rule 49(c)(7)(A)(ii) previously required lead counsel to make arrangements to be “associated with” local counsel, the 2022 amendments changed the term “associated with” to “supervised by.”²¹ Indeed, local counsel is more akin to a temporary contract attorney working on a single project who is physically segregated from the firm’s office space and who has no access to the confidential information of the firm’s other clients.  In such an arrangement, the temporary contract lawyer would not be considered “associated with” the hiring firm and the temporary contract attorney’s conflicts would not be imputed to that firm.²² Similarly, local counsel working out of her own D.C. office on a single matter with no access to confidential information concerning lead counsel’s other clients would not be “associated with” lead counsel or lead counsel’s law firm (or vice versa) for imputation purposes.  As a practical matter, this means that each lawyer’s conflicts review would be limited to her own law firm’s current and prior representations with respect to the matter at hand.   

E. DUTIES TO THE COURT

Similar to local counsel’s duties to the client, local counsel’s ethical obligations to the court apply notwithstanding a “local counsel” designation.  As an example, local counsel has a nondelegable duty to comply with Rule 3.1:

• A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification, or reversal of existing law.²³

Thus, regardless of whether local counsel participates substantively in a matter, she is obligated to refrain from filing frivolous claims, pleadings, motions, or other documents.²⁴

In addition, to the extent that local counsel learns a fraud has been perpetrated in a court, local counsel must take reasonable remedial measures.  Comment [8] to Rule 3.3 states:

• “If the lawyer’s client is implicated in the fraud, the lawyer should ordinarily first call upon the client to rectify the fraud.  If the client is unwilling to do so, the lawyer should consider other remedial measures.  The lawyer may not, however, disclose information otherwise protected by Rule 1.6, unless the client has used the lawyer’s services to further a crime or fraud and disclosure is permitted by Rule 1.6(d).”²⁵

F. DUTIES UPON WITHDRAWAL

A local counsel who has entered an appearance in a matter is obligated to abide by the tribunal’s rules with respect to withdrawing from the representation.²⁶ Should a lawyer serving as local counsel conclude that she has a duty or right to seek to withdraw under Rule 1.16(a) or (b), the client and lead counsel must be timely informed.  

G. REPORTING PROFESSIONAL MISCONDUCT

Pursuant to D.C. Rule 5.1(b) and DCCA Rule 49(c)(7)(A)(ii), local counsel has a duty to supervise lead counsel by making reasonable efforts to ensure that lead counsel conforms to the D.C. Rules of Professional Conduct.  To the extent lead counsel’s conduct does not conform to the rules, local counsel should consider her obligations to the court, her client, and the opposing party.  

As explained in Comment [1] to Rule 8.3, “[s]elf-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct.”  Accordingly, the rule imposes on all lawyers a mandatory duty to report substantial misconduct.  Rule 8.3(a) states:

• A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Rule 8.3(a) “does not require disclosure of information otherwise protected by Rule 1.6 or other law.”²⁷ Information protected by Rule 1.6 includes confidences preserved by the attorney-client privilege and secrets “gained in the professional relationship that the client has requested be held inviolate” or that would be embarrassing or otherwise detrimental to the client if disclosed.²⁸ Generally, local counsel would have to obtain the informed consent of the client before reporting misconduct by lead counsel that occurred during the representation.  

Conclusion

The D.C. Rules of Professional Conduct make no distinction between “local counsel” and “lead counsel.” A lawyer serving as local counsel for litigation in a D.C. court remains subject to the D.C. Rules of Professional Conduct and must make reasonable efforts to ensure that non-D.C. lead counsel conforms to all applicable ethics and court rules.

Published: January 2024

1. Erika Stillabower, A Roadmap for Local Counsel, WASHINGTON LAWYER, July/August 2022, at 54.
2. The term “local counsel” also does not appear in the American Bar Association Model Rules of Professional Conduct or the Restatement of the Law Governing Lawyers.
3. Local counsel are also engaged for non-litigation matters. For example, out-of-state real estate attorneys engage local counsel with specialized knowledge about land records systems to avoid title defects. They may also use local counsel to understand local transfer taxes and zoning matters. Although local counsel in non-litigation matters also have ethical obligations to the client, these types of local counsel scenarios are beyond the scope of this opinion.
4. Federal courts have their own requirements and procedures for appearances by out-of-state attorneys. See, e.g., D.D.C. LCvR 83.2(c), governing admission pro hac vice in the U.S. District Court for the District of Columbia.
5. On June 22, 2022, the District of Columbia Court of Appeals adopted changes to certain provisions of DCCA Rule 49, including the provisions pertaining to pro hac vice admission, which became effective in August 2022.
6. DCCA Rule 49(c)(7)(A)(ii).
7. DCCA Rule 49(b)(9).
8. DCCA Order No. M-227-21, at 2 (June 22, 2022).
9. See In re Bailey, 283 A.3d 1199, 1203 & 1206 n.1 (D.C. 2022) (noting that lawyer’s ethical obligations not altered by “local co counsel” designation). See also In re Fay, 111 A.3d 1025, 1030 (D.C. 2015) (“By asserting his bar membership to aid [lead counsel] in presenting [the client’s] claim, respondent, like local counsel, assumed the ethical responsibilities and duties of the [lead counsel].”). Accord State Bar of N.M. Ethics Advisory Comm., Formal Op. 2020 01, at 1 (2020) (“A lawyer who enters an appearance in a matter as local counsel in association with another lawyer who is admitted pro hac vice has the same duties under the Rules as in every matter in which the attorney appears.”); Utah State Bar, Ethics Op. 17 09, at 2-3 (2017) (“There is nothing in the Utah Rules of Professional Conduct . . . that limits the duties of an attorney admitted to the Utah State Bar who happens to be acting as local counsel for a pro hac vice attorney.”); Ass’n of the Bar of the City of N.Y., Formal Op. 2015 4, at 1 (2015) (“Merely being designated as ‘local counsel’ does not necessarily limit the attorney’s role, nor does it narrow her ethical obligations to the client”).
10. General guidance on limited scope representations may be found in D.C. Legal Ethics Opinion 330 (2005).
11. See Rule 1.2 cmt. [6] (“In all matters involving limited scope representation, it is generally prudent for a lawyer to state in writing any limitation on representation, provide the client with a written summary of considerations discussed, and to receive a written informed consent from the client to the lawyer's limited representation”); see also Ass’n of the Bar of the City of N.Y., Formal Op. 2015 4, at 3 (2015) (“Even where a writing is not required, the better practice is to obtain the client’s consent in writing.”).
12. See Philadelphia Bar Ass’n Prof’l Guidance Comm., Op. 2019-1, at 1 (2019) (noting that although “the scope of [local] counsel’s professional services can be limited with client consent, . . . fiduciary duties such as loyalty and communication are not narrowed.”).
13. Indeed, the client may prefer or expect lead counsel to act as the intermediary between local counsel and the client. See Ass’n of the Bar of the City of N.Y., Formal Op. 2015-4, at 4 (noting “the long-standing, customary practice of lead counsel acting as intermediary between local counsel and the client”).
14. Id. at 5 (“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.”).
15. See e.g. Philadelphia Bar Ass’n Prof’l Guidance Comm., Op. 2019-1. See also ABA Standing Comm. Ethics & Prof’l Responsibility, Formal Op. 481 (2018) (discussing a lawyer’s duty to inform client of material error).
16. See Rules 1.1 and 1.3.
17. Rule 1.5(b). See also Rule 1.2 cmt. [6] (“Rule 1.5(b) requires a lawyer to communicate in writing the scope of the lawyer’s representation when the lawyer has not regularly represented a client.”).
18. See Rule 1.5 cmt. [9] (“A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist.”).
19. In re Confidential (J.E.S.), 670 A.2d 1343, 1344-45 (D.C. 1996) (informal admonition warranted where respondent failed to meet the requirements of Rule 1.5(e)(2). While respondent’s retainer agreement stated generally that co-counsel would be obtained to assist with the case, it did not identify the name of co-counsel, omitted entirely the division of responsibilities between respondent and co-counsel, and excluded language regarding the effect of lawyers outside the firm on the fee to be charged, resulting in the client never gaining “an understand[ing] of [what] each lawyer would do.”).
20. See also Rules 1.11, 1.12, and 1.18 related to former government employment, third-party neutrals, and prospective clients.
21.Notwithstanding the former language of the rule, the Committee does not believe that the prior version of Rule 49 obligated lawyers to impute conflicts between the firms of local counsel and lead counsel.
22. See D.C. Bar Legal Ethics Opinion 352 (2010); see also D.C. Bar Legal Ethics Opinion 255 (1995) (“[T]he association of a lawyer with a firm on an ad hoc, case-by-case basis does not create that kind of continuing relationship, triggering imputation . . . of the individual lawyer’s disqualifications to the firm—except with respect to the individual matters on which the lawyer is associated with the firm—so long as the firm does not create the impression among its clients or the public at large that such a continuing relationship exists.”).
23. Local counsel must also comply with rules imposed by state and federal courts. See, e.g., D.C. Sup. Ct. R. Civ. P. 11(b) (“By presenting to the court a pleading, written motion, or other paper, including electronic filing—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies that [she has met the requirements of the rule] to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances”); Fed. R. Civ. P. 11(b) (same).
24. See Ass’n of the Bar of the City of N.Y., Formal Op. 2015-4, at 4 (“In our view, local counsel cannot reasonably limit the representation to exclude her ethical duty to avoid filing frivolous claims.”). Note, however, that when a lawyer represents a defendant in a criminal proceeding, or a respondent in a proceeding that could result in involuntary institutionalization, Rule 3.1 requires that, “if the client elects to go to trial or to a contested fact-finding hearing, [a lawyer shall] nevertheless so defend the proceeding as to require that the government carry its burden of proof.”
25. See also Rule 4.1(b) (prohibiting knowing failure to disclose material facts to third persons when necessary to avoid assisting a criminal or fraudulent act by the client except when disclosure is prohibited by Rule 1.6).
26. Rule 1.16(c).
27. Rule 8.3(c).