Go It Alone? Federal Courts Admitting Out-of-State Attorneys Without Local Counsel

• Pages: 20-20
• Date: 01 July 2021
• Author: Brian A. Zemil
• Subject Matter: Civil Law

Published in Litigation News Volume 46, Number 4, Summer 20 21. © 2021 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

federal distr ict court recently adopted a new local r ule

eliminati ng the special admission requir ement for

out-of-state counsel to re tain local counsel. The new

rule highlights the restrictiveness of other district

court rules gover ning admission and their vari-

ability from one federa l jurisdiction to another.

Some distric t courts permit representat ion if admitted in

another distr ict court. Others require ad mission to the jurisdic-

tion’s state bar or retention of local c ounsel and admission via

motion pro hac vice. Dist rict courts are increasi ngly adopting

less restric tive measures for admission that resp ect a client’s

original attor ney selection and provide cost savings by avoidi ng

local counsel fe es. Yet admission ru les among the district cour ts

remain dispa rate, requiring consideration of numerous iss ues

before seeki ng admission without local c ounsel.

A signica nt number of attorneys are engaging in t he

interstate practi ce of law that requires admission to practic e

multi-jurisdictionally. Globalization and pandemic-inspired

technology conti nue to transform the legal marketplac e, with

more clients confronti ng legal problems that cross jurisdic-

tional lines a nd prompt more lawyers to respond to those cli-

ent needs by crossing borde rs virtually. While federal d istrict

courts are where mo st interstate or international disput es are

litigated, the Fede ral Rules of Civil Procedure are sile nt regard-

ing a lawyer’s admission to prac tice. Instead, Rule 83 of the

Federal Rules of Civi l Procedure and 28 U.S.C. § 1654 and

§ 2071 authorize each di strict court to institute lo cal rules that

regulate and li mit admission to practice before it.

The U.S. Dis trict Court for the Middle Di strict of Florida,

for example, adopted a new loca l rule that allows admission

without local coun sel. The rule explicitly perm its any “mem-

ber in good stand ing of the bar of a United States distr ict

court to move for special ad mission,” even if counsel is not

a member in good sta nding of the Florida bar. Although the

court did not expla in the reason for the change, the new r ule

recognize s the uniformity of federal proc edure that signi-

cantly reduces the ne ed for local counsel. A minority of d istrict

courts, inc luding some located in Texas, Illinois, a nd Ohio,

also do not require loc al counsel for admission.

North Caroli na’s three federal cou rts, on the other hand, fol-

low the majority of court s that limit eligibility to prac tice before

it to attorneys who are adm itted to and in good standing w ith

the state bar where the d istrict court sits. Out- of-state counsel

wishing to repres ent a client in federal court in Nort h Carolina

must engage a local at torney who is a member of that district ’s

bar and who will ente r her appearance on the record. Next, i f

the matter is before t he Eastern or Middle Distri cts of North

Carolina, t he out-of-state attorney must enter a notice of spe cial

appearance. Or, if t he matter is before the Western Distric t of

North Caroli na, local counsel must move for the out-of-st ate

attorney’s admissionpro hac v ice. All district cou rts in California

and Georgia si milarly require local couns el for admission.

District cou rts often justify admis sion based on an associa-

tion with a local at torney because the attorney is more li kely

to have a thorough understa nding of local rules of procedure

and practice to ensu re the fair and efcient admi nistration of

justice. These ju risdictions believe the loca l practitioner can

help avoid unnecessar y judicial inefciencies th at save attorney

time and client money.Clients r etaining local counsel c an also

potentially bene t from their favorable relationships with, and

a good reputation among, t he judges on the court and other

attorneys in the com munity. These relationships may increa se

the chances for obta ining a client’s desired outcome.

The Restat ement (Third) of Law G overning Lawye rs criti-

cizes the federa l court rules requiring l awyers practicing before

the court to be lic ensed by the state in which the federa l court

sits as “inconsistent” w ith the relative uniformity of federa l

law and the “nature of the cou rt’s business.” While district

courts are be ginning to ease admission re quirements, they nev-

ertheless recom mend retention of local counsel. For example ,

the Middle Dist rict of Florida says that “it will often b e impor-

tant and best prac tice to retain local counsel to g uide counsel

who is outside the distr ict or not a member of the district’s bar

with local pract ice and custom.”

The next time you r client is litigating in federal dis trict

court outside of your home stat e, examine the local rule s to

determine whet her admission is contingent on retai ning local

counsel. If the ju risdiction allows special ad mission without

local counsel , consider the level of complexity of the legal

issues involved in the ca se, and the amount in controversy

before making a re commendation to your client regarding

retention of local cou nsel. If your client decides to retain lo cal

counsel, inter view local counsel to determi ne the nature and

scope of his or her exper ience.Ask how frequently they appear

in the court where you r case lies, whetherthey have fami liar-

ity with the cla ims and defenses pertinent to your c ase, and

whether they have exper ience drawing juries in that cou rt.

RESOURCES

Fed. R. Civ. P. 83.

Local Rules , U.S. Dist. Ct. Mi d. Dist. Fla. (Feb. 1 , 2021).

Restatement ( Third), Law Governing L awyers (Am. L. Inst . 2000).

Go It Alone? Federal Courts Admitting

Out-of-State Attorneys Without Local

Counsel

By Brian A. Zemil , Litigation News Associate Editor

20 | SECTION OF LITIGATIO N

CIVIL PROCEDURE UPDATE