Local Counsel: How to Effectively Handle Your Legal Issues Occurring in Another State
12.29.2008
What happens if you live outside the state of Delaware, but have a legal matter that has to be decided in Delaware courts? You may find yourself, or your business, in one of these situations:
- You must sue a Delaware company for breach of contract.
- A company that owes you money has declared bankruptcy in Delaware.
Can your own, familiar attorney represent you? In Delaware, as in most states, the answer is yes.
Attorneys from outside the state of Delaware are permitted to represent their clients in the courts of the state of Delaware if they follow certain rules and guidelines. Of course, the out-of-state attorney must agree to be bound by the Rules of Ethics, the Principles of Professionalism of the state of Delaware, and is subject to the jurisdiction of the Supreme Court for disciplinary purposes. Another important requirement is that an out-of-state attorney must associate with a "local" Delaware attorney. Most jurisdictions have similar requirements permitting an out-of-state attorney to appear on a temporary basis, one case at a time, by applying to the court for admission pro hac vice, or "for one matter."
Responsibility to the Court
Local counsel must sign all documents and pleadings that are filed in the courts. This requirement not only assures compliance with local styles, but also places significant responsibilities on the local attorney. By signing the documents, a local attorney certifies to the court that:
- He or she has read the document.
- There is a good basis for the pleading.
- The document was not filed for purposes of harassment or delay.
Violation of these duties can result in discipline and rulings against a person's case. This is one mechanism the court has to control litigation when out-of state attorneys are involved.
Familiarity with the Territory
Local counsel performs a number of functions that are valuable to both the client and the court. In addition to signing all documents, local counsel must appear at all hearings and conferences with a judge, at least until the court becomes familiar enough with the out-of-state attorney to wave that requirement.
Local counsel is familiar with the practices of the local courts and the traditions of practice unique to the area. Local attorneys are more familiar with jury verdicts and general attitudes of the community. Experienced local counsel not only knows the physical layout and location of important aspects of the courthouses, but also is likely to know the personalities and characteristics of the judges.
For example, Delaware has some courts that are not found in most other states. Few other jurisdictions have separate courts of equity jurisdiction such as Delaware's Chancery Court. This court operates much differently from other courts in Delaware and in other states. Similarly, its jurisdiction is limited to specific statutorily or constitutionally authorized cases.
Clients benefit from local counsel's familiarity with local legal practices. Court rules for the structure and contents of briefs are very particular and detailed. They also vary somewhat from court to court, even within the same state. Experienced local counsel can help outside counsel adhere to these rules. By preparing the out-of-state attorney in advance, local counsel can help reduce fees resulting from the need to redraft documents to meet localized specifications.
Another example of the value local counsel brings can be drawn from Delaware's practice in depositions (pre-trial question and answer sessions with witnesses who are under oath). Delaware has well-developed law limiting attorney conduct at depositions in a number of ways. "Coaching" a witness is not permitted. Usually each party examines a witness only through one attorney.
Assurance of Civility
The Delaware Supreme Court's "Principles of Professionalism" address questions of proficiency and civility among attorneys dealing with each other and the courts. The courts are interested in preserving a long and valued civility among the members of the Delaware bar that Delaware lawyers call "the Delaware way." Attorneys from large cities are sometimes accustomed to bullying tactics. In Delaware, such tactics will result in the judge reprimanding the attorney or restricting the attorney, and, in at least one case, the Supreme Court disbarred an "uncivil" Texas attorney from practicing in Delaware. Attorneys from other states must certify to Delaware courts that they have read and will abide by the Principles of Professionalism, in addition to the more familiar Rules of Professional Conduct, procedural rules and local rules of each court.
Next month, we'll highlight ways clients can help define the scope of Local Counsel's role in order to avoid fees arising from duplication of effort.
