NJ:Local Counsel's Duty to Litigants
Ingemi v Pelino & Lentz 866 F. Supp. 156 (D.N.J. 1994)
NJ Underlying Action-Claim for pension benefits
Student Contributor: Candice L. Deaner
Facts: Plaintiff instituted a malpractice suit against related New Jersey and Pennsylvania law firms due to their mishandling of the underlying litigation. Plaintiff specified her desire to have a New Jersey attorney and the New Jersey law firm was retained as local counsel. They then petitioned the court to admit pro hac vice two lawyers from the Pennsylvania firm. The New Jersey firm argued that one of the Pennsylvania lawyers was the only one to give advice and act “on the judgmental and strategic issues,” and contended that the New Jersey firm served “merely” as local counsel, performed ministerial tasks, and undertook “discovery and motion practice in a manner that did not require making judgments or giving advice regarding prejudgment remedies or settlements,” and therefore was not liable in this action.
Issue: What is the role of local counsel when pro hac attorneys are admitted to handle the case?
Ruling: The Court found that the New Jersey firm “underestimated the role of local counsel” and stated that “by virtue of submitting the pro hac vice application, the New Jersey firm was responsible for the ‘conduct of the cause.’” Local court rules “require local counsel to take more than a de minimis role in the representation,” and clearly indicate “that local counsel is the counsel of record with attendant responsibilities, not out-of-state counsel admitted pro hac vice.”
The Court held that
“Local counsel must also supervise the conduct of pro hac vice attorneys and must appear before the court in all proceedings. Even if pro hac vice attorneys attempt to delegate solely routine or ministerial tasks to local counsel, local counsel remains counsel of record and wittingly or unwittingly exposes itself to liability for penalties such as sanctions.”
Lesson: A law firm retained as local counsel has equal responsibility even though other counsel is actually handling the prosecution of the case. , Liability is not delegated to the pro hac vice attorneys. Local counsel must continue to supervise the pro hac vice attorneys and appear in court. A law firm cannot avoid liability by claiming that other counsel was primary. The responsibility still lies with the local counsel to supervise and handle the case.
Editor's Note: For other cases holding local counsel potentially liable for malpractice to client, see also:. Ortiz v. Barrett, 278 S.E.2d 833, 838 (Va. 1981); Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121 (N.D. Ohio 1990); Neel v. Magana, Olney et al., 98 Cal. Rptr. 837, 491 P.2d 421 (1971); Wildermann v. Wachtell, 267 N.Y.S. 840, 841 (1933), affirmed, 271 N.Y.S. 954 (1934).
I don't know if I agree with the case. Whether local counsel should be responsible should be determined by the amount of control the local counsel had in the underlying action. If they had absolutely no control, they should not be held vicariously responsible. I believe the law of agency would be helpful in figuring out liability.
I also think that liability should be determined based on the amount of control each attorney/firm had in the underlying action. Even though it seems fair that both firms are undertaking responsibility for the case, I don't think it would be fair to hold local counsel responsible for conduct of the other firm when their role in the litigation was limited.
In a situation such as the case described above, I think it was prudent that the NJ counsel were responsible for properly handling the case. Even when lawyers are admitted pro hac vice, they are not familiar with the other state's laws and it makes sense that the local counsel should advise the "temporarily admitted" lawyers as to their responsibilities.
I disagree with Ms. Goldberg. Given that the court held that the local rules required "local counsel to take more than a de minimis role in the representation,” the local counsels' potential lack of control should not exempt them from liability. If the local counsel exercised no control over the case and the pro hac vice attorneys, then they violated the local court rules. There was a duty to supervise here that was not met by the local counsel.
I agree with the court’s decision because as Ms. Neuman stated the lawyers who are admitted pro hac vice may not be familiar with the other state's laws, which is why local counsel should supervise the pro hac vice attorneys and therefore remain counsel of record. I also think that this ruling is clear so that local counsel can understand their responsibilities, and also know that they cannot avoid liability even when they are only local counsel.
I agree with Ms. Gaedcke. If one attorney's role was only 10 percent, while anothers was 90 percent, I do not think that each party should be held equally accountable. It just seems logical that one should be responsible for their actions, not the actions of another.