What About Clients?™

I completely hear you. Now take this and multiply it by ten and you have much of Asia, where a one off American client comes way behind local lawyer ties and not ruffling feathers. I actually just finished writing about this for the Complete Lawyer, on the gig you got me.

Oh, and this story you told of having to jettison a big firm: that's my story only with Florida as the locale....

Dan:

I have engaged local counsel numerous times and have served as local counsel for others in litigation matters, and, as a result, have developed a network of friends and good lawyers nationally and internationally. I share most of your sentiments, but with some notable caveats:

1. It is very important to vet local counsel as thoroughly as possible on the front end. This includes discussing the case with them and making sure their attitudes coincide, at least on the big issues, with the positions to be advocated in favor of the client. This is simply the point you are making in your last paragraph.

2. I expect and want local counsel to have a meaningful role in the litigation. I want them to be more than a "mail drop." However, many other lawyers treat local counsel as a "mail drop" because they want to keep all the work to themselves, including making all strategic decisions without the involvement of local counsel. It is very difficult to get any lawyer to "buy in" to a decision they were not part of making.

3. It is entirely fair for local counsel to bring up the point that they have to practice in the local courts (federal or state) long after the matter is over. One of the reasons that we engage local counsel is because of their knowledge and familiarity with the customs, local rules, local expectations, and, most importantly, the judges. I have seen more than one occasion, particularly regarding discovery disputes, where local counsel have advised that a particular position would not be viewed favorably by the judge. Despite this advice (which is exactly what local counsel should be providing), they may be overruled by lead counsel or in-house counsel. I have even seen such instances in which local counsel are "instructed" to deliver the message to the other side. The wimp in such situations is pretty obvious, and, to me, it is the ultimate cowardice for lead counsel to hide behind local counsel when there is a divergence of views on strategy. A particularly egregious example is when lead counsel or the client will not consent to granting a short extension to answer the complaint or respond to discovery which the local counsel knows will be granted and which will only make everyone (the client, lead counsel and local counsel) look bad when the other side goes to the judge. Such decisions are not "effective aggressive litigation tactics," they are just stupid.

4. I have seen relatively few instances in which local counsel have been wrong about how a matter, particularly a discovery matter, would be decided.

5. The flip side of the local counsel situation is that I am very careful about taking local counsel work. I want to make sure that the lead counsel has a plan and strategy that seems logical. I want to know them, or, if I do not know them, make sure that they seem like people I can work with in an effective way. I want to make sure that I am going to have a meaningful role, although a subordinate role. Local counsel engagements can be an opportunity, but they carry a lot of risk. If I sense any warning signs regarding these issues, I'm going to pass.

Dan Harris: I've worked fairly often (not as often as you) with counsel or accountants in Greater China and the risk aversion level is frustrating and laughable. I hear you, too. All conversations on their side sound like the most wimped-out opinion letter language in a satire about lawyers and their worse character defects. Those guys are rarely solution-oriented--and pride themselves in telling you exactly why something is time-consuming, impossible and/or will never work (well, it beats the French).

John: All good comments, sir--and worthy of their own post as they catch and cover subtleties mine didn't. You make me want to work with you.

In the circumstance I described, the local counsel our client and we hired was included in all decision making; in fact, all decisions started with them, both out of respect and wanting to make the right moves. Our biggest disagreement turned on their relationship with a local adverse lawyer for plaintiff who even they agreed was a bad actor, if not something worse. Aside from that, they lacked even a modicum of zeal, and spirit. On the rest of the "incident", I hope you appreciate the need to keep the facts vague (one downside for court people who blog).

Re: judges, that's a fine point. In our case we listened to the LC on approaches to judges most of the time. But--and this is where I disagree with you, and maybe strongly--our GC (a fine lawyer, highly respected) carefully considered the local advice on a softer approach but ultimately had to put the company/client before the perception that the judge might not like our level of aggression, or formally using the FRCP in a certain way, or whether a certain type of motion was looked upon favorably by this federal judge. (BTW, as federal rules applied, the judge could hardly claim surprise at what we were doing: using the rules that governed him, too.) In the same situation, the GC would have proceeded the same way in his own hometown, a few states away, on an important piece of that case, or any other case. We really did need to protect the record, and we expect local counsel to see things our way when we feel that strongly.

I have other examples--so at this point I no longer expect as much out of local counsel as I once did.

My point in short: How LC, once engaged, "look" in their community is never as important as Their Client, even in a one night stand.

Dan:

For the reasons you mentioned, I am not aware of the specific facts of your case, and I suspect I would agree with your evaluation of them if I were.

John

John--You are both kind and making way too much sense. Dan

Mr. Harris' comments are very well taken.

I do a fair amount of work for out-of-state counsel. If they only want local logistical support and help with the local rules, that's fine with me, so long as they show up and take responsiblity for thier decisions. If they want me to be substantively involved, that's fine, too, but in that case the plan has to be something I agree with at the outset (preferably something arrived at jointly).

I regard out-of-state counsel in the same way I regard my clients, for, in a sense, they are my clients. If my clients want to do something stupid, it is my job to dissuade them. If they don't take my advice, the results are on them. If the disagreement interferes with my ability to effecively represent them, I refer them to someone whose ideas on he matter may be more closely aligned with those of the client.

Life is too short to fight the adversary in front of you and the client behind you.