State Line Ventures, LLC v. RBS Citizens, No. 4705-VCL (Dec. 2, 2009), read letter decision here.
This letter decision of the Delaware Court of Chancery must be read by any Delaware lawyer serving as “local counsel”, and more importantly, should be required reading for any non-Delaware lawyer (or any out of state attorney) who requests a Delaware lawyer to be his or her “local counsel”.
The Court, in a pithy and pointed summary of Delaware law, debunks any definition of “local counsel” in Delaware as being anything less than counsel of record fully responsible for every pleading filed, every discovery request or reply, and every argument made to the Court–regardless of the frequent and customary role of “forwarding counsel” being heavily involved in the prosecution of the case. This letter ruling is only two-pages long and to avoid this synopsis being longer than the Court’s ruling, I commend it for your careful review–and suggest that it be kept handy for future reference. Nonetheless, a excerpted quote from the decision follows:
Because the letter uses the phrase “local counsel,” I believe it important to make clear that the Court of Chancery does not recognize the role. I am certainly familiar with the term, and I know well that it is often used colloquially as if it were synonymous with “Delaware counsel.” It is not. Our rules make clear that the Delaware lawyer who appears in an action always remains responsible to the Court for the case and its presentation. See Ct. Ch. R. 170(b) (“The admission of an attorney pro hac vice shall not relieve the moving attorney from responsibility to comply with any Rule or order of the Court.”). So do the Principles of Professionalism for Delaware Lawyers.
It is of course true that Delaware counsel and forwarding counsel necessarily allocate responsibility for work, and that in some cases, the allocation may be heavily weighted towards forwarding counsel. It is also true that forwarding counsel may have primary responsibility for a matter from the client’s perspective, particularly if the Delaware litigation is one part of a larger picture. This is perfectly understandable, efficient, and appropriate. But it does not alter the Delaware lawyer’s fundamental responsibility for the Delaware proceeding. A Delaware lawyer always appears as an officer of the Court and is responsible for the positions taken, the presentation of the case, and the conduct of the litigation.
If a Delaware lawyer signs a pleading, submits a brief, or signs a discovery request or response, it is the Delaware lawyer that takes the positions set forth therein. This is true regardless of who prepared the initial draft or how the underlying work was allocated. When a particularly questionable argument was made in the briefing, I have not hesitated to ask the Delaware lawyer at the hearing how the argument possibly could be advanced, regardless of whether forwarding counsel was designated to make the argument. (Emphasis in original).
UPDATE: The AmLaw Daily highlights this post here with a headline that I paraphrase: “In Delaware, There is No Such Thing as “Local Counsel”.