October 21, 2008
Weak/wimpy local counsel: the next lawyer-centric epidemic?
Weak or wimpy local counsel are local counsel hired for litigation (or other contentious matters) who, after the engagement has begun, instinctively and consistently put local relationships ahead of the interests of your shared client.
They are legion, and some of your best friends. They are not bad people. They are often very smart and nice. Others may even call them good lawyers, and invite them to bar functions, family cookouts, church groups and wine-and-cheese parties. Or to more unruly places like Daytona, the Hamptons, or saloons with boozy names like Bullfeathers or the Tune Inn. They are Everywhere, and mostly men. They are in the wrong profession (or practice area). They don't know that yet, may never know, or want to know.
Replace weak/wimpy local counsel quickly at the first sign of hesitancy to put your client first--even if it's supremely awkward, or involves "old ties". Clients do come first. In an ongoing contentious matter especially, you live and breathe it. Neither you--or your local attorneys--should even have to think very hard about that one.
You can serve a client without hurting relationships between lawyers in or out of their own provinces. One of the advantages of local counsel in litigation is a knowledge of, and rapport with, the locals, and their folkways. But those relationships come second to a mutual client. Anything less is at best "unprofessional" and, at worst, a conflict of interest. The following, from our "Sensitive Litigation Moment"/Federal Courts series, are among the most visited WAC? articles: Is "Professionalism" Just A Lawyer-Centric Ruse?, The Client's Professionalism Rules For Litigation, and "Professionalism Revisited: What About the Client?" (also in San Diego Daily Transcript, April 29, 2005).
Example: Last year our firm quickly engaged for litigation a local counsel in the small branch of a large Midwestern firm for an important out-of-state federal court discovery skirmish. They were two experienced lawyers with fine credentials who focused more on preserving personal relationships with local lawyers in their town than on going to bat for our mutual business client, a very good one at that. It was frustrating--and a bit pathetic--like having a courtly and polite but somewhat inebriated and prissy tennis doubles partner with weights strapped to each of leg, who was either unwilling or unable to go to the net. After informal discussions with adverse (plaintiff's) counsel failed three times, we and the client asked local counsel to file with us an aggressive but clearly needed motion in order to protect the record. Our co-counsel at first balked, and even defended themselves ("well, you know, we have to practice around here..."). It made us feel helpless and, well, angry.
But it was my firm's fault. We "let go" their well-known firm and them as soon as we caught on. We resolved next time to do better research on the ability of local counsel to be aggressive (if we needed it). Not only did our client and we waste time and money on that firm. The firm we canned lost out on the very real prospect of repeat work from that publicly-traded client. The client could have selected the larger firm for future work on its own, or our own boutique firm could have selected it for work with that client or other clients, as we often need strong help throughout the U.S. and in Europe. We love larger firms--when they deliver.
Posted by JD Hull at October 21, 2008 11:28 PM
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....
Posted by: Dan Harris at October 21, 2008 04:21 AM
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.
Posted by: John Watkins at October 21, 2008 08:28 AM
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.
Posted by: Dan Hull at October 21, 2008 12:00 PM
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.
Posted by: John Watkins at October 21, 2008 10:05 PM
John--You are both kind and making way too much sense. Dan
Posted by: Dan Hull at October 22, 2008 05:00 PM
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.
Posted by: Peter Georgiades at November 11, 2009 06:11 PM