When companies and individuals become involved in a lawsuit in a jurisdiction different from where they reside, they typically choose to retain attorneys with whom they have worked before, rather than searching for counsel in the jurisdiction where the lawsuit is pending. While counsel can apply for pro hac vice admission to practice in courts where they are not admitted, particularly in courts that are out of state, they must also engage counsel admitted in the relevant jurisdiction to assist with the proceedings. Local counsel often accepts this role in a “mailbox” capacity; that is, local counsel merely facilitates an out-of-state lawyer’s working on a pro hac vice basis and limits its participation in litigation items like motion practice, discovery, and trial preparation.
Recent amendments to the Local Rules for the Middle District of Tennessee, which became effective as of January 24, 2020, impact the role of local counsel assisting attorneys admitted on a pro hac vice basis. Local Rule 39.01, which governs trial procedures, requires that “[e]ntry of an appearance or otherwise participating as counsel of record is a representation that the attorney will be prepared to conduct the trial of the case, from which the attorney may only be relieved by approval of the Court.” Furthermore, Local Rule 83.01, which governs admission to practice in the Middle District of Tennessee, requires that “[i]n addition to visiting counsel, local counsel, if any, remains responsible to the Court at all stages of the proceedings.”
These amendments are designed to increase the accountability of attorneys serving as local counsel in cases pending in the Middle District of Tennessee, particularly in situations where out-of-state counsel is directing all aspects of the litigation and simply relying on local counsel for filing and service of relevant papers. District Judges and Magistrate Judges want to ensure that local counsel remains engaged in all aspects of the case, especially when discovery issues arise between opposing parties. While out-of-state counsel typically would handle such issues in the past, judges now will be expecting local counsel to address such issues and holding local counsel accountable for any missteps.
For attorneys serving as local counsel in the Middle District of Tennessee, these amendments represent a sea change for those who are content to allow attorneys admitted pro hac vice to handle all aspects of the lawsuit. In cases that currently are pending, local counsel would be wise to contact out-of-state counsel to advise them of the new obligations imposed on local counsel and to obtain a full briefing on the issues presented in the lawsuit. Specifically, local counsel should inform out-of-state counsel that the new rules will require more involvement from local counsel and that if a disputed matter requires judicial resolution, the court will expect local counsel to explain the dispute, any efforts at resolution, and the differences in the parties’ positions.
In addition, these new requirements potentially could impact how parties choose local counsel when they become involved in litigation in the Middle District of Tennessee. Because local counsel now is responsible for all aspects of the case, including trial, it becomes imperative for parties to retain local counsel best able to represent their interests throughout litigation, as opposed to local counsel that simply reviews pleadings and motions and handles filing and service. While out-of-state counsel still can provide valuable services, the importance of having excellent local counsel should become more of a priority when out-of-state entities or individuals find themselves involved in litigation in the Middle District of Tennessee.