Over more than 40 years of practice, I’ve worked in jurisdictions in which I was not admitted to practice and served as local counsel to lawyers not admitted in jurisdictions where I was. It’s hardly uncommon, but it is fraught with the potential for very serious problems. As Eugene Volokh notes, those problems smacked an Oregon local counsel upside the head for a sanction of $14,205.66 when pro hac vice counsel submitted papers containing hallucinated AI citations.
Ms. Couvrette … [had] asked Mr. Murphy to serve as local counsel for Mr. Brigandi’s pro hac vice admission. Mr. Murphy signed Mr. Birgandi’s pro hac vice application and personally attested that he read and understood the requirements of serving as local counsel under LR 83-3….
Mr. Brigandi’s son was dating Ms. Couvrette’s daughter, and Mr. Brigandi had agreed to represent Plaintiffs for free. According to Mr. Murphy, Mr. Brigandi was primarily responsible for the litigation strategy and for all dispositive motions practice. Mr. Murphy explained, “[m]y role mostly involved strategizing with Mr. Brigandi and Ms. Couvrette on how to fashion a settlement in connection to the commercial property…. I believed that my expertise in landlord tenant law would be helpful.” …
At issue before the Court is whether Mr. Murphy willfully violated [Local Rule] 83-3 by failing to meaningfully participate in the case. Mr. Murphy argues that the Court should not impose a sanction because he did not participate in the summary judgment briefing and he was unaware that the Local Rules required him to review his associated pro hac vice counsel’s filings prior to submission.
For the most part, the role of local counsel basically consists of submitting the pro hac motion, answering any questions about peculiarities of local practice, and then forwarding any papers that somehow fail to make their way to pro hac counsel’s desk. Typically, local counsel is paid a minimal fee, if any, for the introduction as the heavy lifting is to be done by pro hac counsel.
Often, local counsel is a friend or acquaintance of pro hac counsel, often two or three times removed, and is basically doing a favor for a fellow lawyer. The rules, however, demand more.
Local Rule 83-3 provides in relevant part:
(a) Application for Special Admission Pro Hac Vice
Any attorney who is an active member in good standing of the bar of any United States court, or the highest court of any state, territory, or insular possession of the United States, may apply to be specially admitted pro hac vice in a particular case, provided he or she:
(1) Associates with an attorney admitted to general practice before the bar of this Court, who will meaningfully participate in the preparation and trial of the case.
Sure, the rules require “meaningful participation,” but what’s the point of having pro hac counsel if the local lawyer is doing the work? After all, the pro hac lawyer is getting paid the big bucks, and was retained by the client to be the primary lawyer on the case. The client doesn’t know local counsel, and local counsel often knows nothing about the case as, well, why would he? The pro hac lawyers is, presumptively, fully competent to serve as counsel, and the niceties of out-of-jurisdiction admission aside, it’s hardly a great reach to learn local rules and otherwise practice in a court far from home.
Notably, in Couvrette v. Wisnovsky, the problem really had nothing to do with local rules or local practice, but with shameful lawyer incompetence when the pro hac lawyer submitted papers with fake citations. This isn’t a reflection on the peculiarities of practicing in a foreign jurisdiction, but with the basic responsibility to perform work competently and not be so lazy as to submit papers with hallucinated citations. Pathetically, this has become an increasingly real problem as lawyers use AI to do the work the client expects, and is paying, the lawyer to do.
But for local counsel, it raises the problem that they are ultimately responsible to the court for the pro hac lawyers failings. By signing on as local counsel, they undertake a duty to make certain the lawyer for whom they vouched doesn’t submit incompetent papers or phony cites. Even though local counsel never expected that he would have to vet the pro hac lawyer’s papers, he is at risk for his failure to do so when something like this happens.
I have refused to serve as local counsel for lawyers I didn’t know, whose work might be great or shoddy, because of the duty to serve as the stop gap between the court and the pro hac lawyer. Similarly, I have refused cases in foreign jurisdictions when I had no trusted friend available to serve as local counsel. It wasn’t that I didn’t want the case or the fee that came with it, but that I was acutely aware of my responsibility to the client to provide zealous representation. When constrained to rely on local counsel, whose skill or diligence was unknown, I could not be certain that I could provide the quality of representation demanded and expected.
While this case is yet another example of the apocryphal problems with using AI to perform legal work that lawyers, not algorithms, are expected to provide, it is also a painful reminder that agreeing to be local counsel isn’t just signing off on the pro hac lawyer’s introductory motion and then answering the occasional local practice question. In this case, it cost the local lawyer almost $15,000. Far more importantly, it cost the lawyer his integrity, which is something we should value far more than money.