Local Counsel

THE ROLE OF LOCAL COUNSEL

In recent years Texarkana has garnered worldwide attention for numerous high profile, complex cases which have been litigated here. Many of these cases are filed in the Texarkana Division of the United States District Court for the Eastern District of Texas. Unique local rules and the court's excellent reputation for the efficient management of complex cases have made the Texarkana Division the forum of choice for a number of multi-billion dollar cases, including the State of Texas tobacco litigation, Bre-X Class Action, and Enron claims, as well as many other complex commercial cases. State courts in Arkansas have also become a popular forum for nationwide class action suits. Mercy Carter Tidwell, L.L.P serves as local counsel for businesses and law firms throughout the United States and abroad. We are frequently chosen as local counsel because of our extensive trial experience, commitment to innovative and aggressive representation, and our ability to actively practice law in the States of Texas and Arkansas. We routinely provide critical assistance in all areas of complex litigation. As a result, we are very familiar with the applicable local rules, likes and dislikes of the local judges, and the subtle yet important nuances of the courts. Clients and law firms that have engaged us as local counsel have found our services invaluable to their litigation efforts.

We have served as local counsel for plaintiffs and defendants, including some of the nation's largest companies and law firms, as well as smaller businesses and individuals. Our role as local counsel varies, depending upon the needs and desires of the client and their general counsel. In some cases we assist lead counsel as needed in preparing complex cases for trial. In other cases we serve as lead counsel, which requires us to actually manage the litigation, including trial. From the most complex to the most routine commercial litigation, Mercy Carter Tidwell can provide the services required to obtain success in litigation.

Engagement Of Local Counsel

Local counsel is typically retained in one of two ways. In some cases the client's existing counsel put the client in contact with local counsel, who is then engaged directly by the client. In some instances the client will authorize existing counsel to engage the services of local counsel.

The Duties Of Local Counsel

Generally speaking, once an attorney undertakes to act as local counsel, certain duties and potential liabilities attach. For instance, local counsel:

1. Must exercise reasonable care and diligence in the representation of the client and in the assistance to lead counsel;
2. Owes fiduciary duties to the client in conformity with the applicable rules of professional responsibility; and
3. Is responsible for compliance with all local court rules, and in some courts is responsible for non-local counsel's compliance with local court rules.

Any negligence on the part of local counsel can result in liability to the client for damages. Whether local counsel has acted negligently will depend on the assignments from lead counsel and on the relationship with the client.

In some jurisdictions the Rules of Professional Conduct provide for local counsel to limit the scope of representation. Nevertheless, local counsel should always make clear who is responsible for any particular aspect of the representation. In recent years courts have abandoned the traditional notion that "local counsel" is somehow less responsible for representing the client. See Gould, Inc. v. Mitshui Mining & Smelting Co., 738 F. Supp. 112,1125 (N.D. Ohio 1990).

Local Counsel And The Court

Local counsel is generally held fully responsible by the court for the actions of associated non-local counsel. The Local Rules for the Eastern District of Texas require that each party designate an "attorney in charge", who is principally responsible for the litigation. Typically local counsel serves as "attorney in charge", and thereby becomes responsible for supervision of any non-local counsel. In both Arkansas and Texas local counsel is responsible for obtaining Pro Hac Vice status for non-local counsel.

Local counsel is subject to sanctions under Rule 11 of the Federal Rules of Civil Procedure in connection with pleadings which are actually prepared by non-local counsel. However, at least one court has upheld sanctions against local counsel, making the following observation:

Local Counsel seemed blindly to follow the commands of its out-of-state associates who in all probability prepared most if not all the motion. What Rule 11 requires is that the lawyer who elects to sign a paper takes responsibility for it, even if that responsibility is shared. Colburn Optical Industries v. Cilco, Inc. , 610 F. Supp 656, 660 (M.D.N.C. 1985).

The Local Rules for the Eastern District of Texas have adopted specific standards of practice to be observed by all attorneys who practice before that court. Based on the en banc opinion in Dondi Properties Corp. v. Commercial Savings and Loan Assoc., 121 F.R.D. 284 (N.D.Tex.1988), these standards can be found in Local Rule AT-3. That rule provides that all attorneys who appear in the Eastern District shall comply with the following standards of practice:

1. In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the judicial system that serves both attorney and client.
2. A lawyer owes, to the judiciary, candor, diligence and utmost respect.
3. A lawyer owes, to opposing counsel, a duty of courtesy and cooperation, the observance of which is necessary for the efficient administration of our system of justice and the respect of the public it serves.
4. A lawyers unquestionably owes, to the administration of justice, the fundamental duties of personal dignity and professional integrity.
5. Lawyers should treat each other, the opposing party, the court, and members of the court staff with courtesy and civility and conduct themselves in a professional manner at all times.
6. A client has no right to demand that counsel abuse the opposite party or indulge in offensive conduct. A lawyers shall always treat adverse witnesses and suitors with fairness and due consideration.
7. In adversary proceedings, clients are litigants and though ill feelings may exist between clients, such ill feeling should not influence a lawyer's conduct, attitude, or demeanor towards opposing lawyers.
8. A lawyer should not use any form of discovery, or the scheduling of discovery, as a means of harassing opposing counsel or counsel's client.
9. Lawyers will be punctual in communications with others and in honoring scheduled appearances, and will recognize that neglect and tardiness are demeaning to the lawyer and to the judicial system.
10. If a fellow member of the Bar makes a just request for cooperation, or seeks scheduling accommodation., a lawyer will not arbitrarily or unreasonably withhold consent. The Court is not bound to accept agreements of counsel to extend deadlines imposed by rule or court order.
11. Effective advocacy does not require antagonistic or obnoxious behavior and members of the Bar will adhere to the higher standard of conduct which judges, lawyers, clients and the public may rightfully expect.

Conclusion

Local counsel serves a vital role in the representation of clients, particularly in complex commercial litigation. Local counsel should always make sure they understand the scope of their duties. It is critical to review all pleadings that are filed for compliance with local rules, and to discuss concerns with other counsel about pleadings or any conduct which does not comport with the standards set forth by the local court. Even though non-local counsel manage certain aspects of a given case, local counsel should always be mindful of the duties to the client and responsibilities to the court.

You may contact us at:

Mercy Carter Tidwell, L.L.P.
1724 Galleria Oaks Drive
Texarkana, TX 75503
(903) 794-9419
(903) 794-1268 (facsimile)
(877) 499-9419 (Toll free)