Do You Need "Local Counsel" in Iowa?
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Iowa Rule of Court 31.14 and 31.25 govern Admission Pro Hac Vice Before Iowa Courts and Administrative Agencies. (Amended effective March 15, 2007). The applications and all other forms can be downloaded HERE.
In Iowa, the term "LOCAL COUNSEL" does not mean the same thing that it does in many other states. Important ethics rules are listed below. Read the full ethics opinion HERE.
In order to be admitted pro hac vice, a non-Iowa lawyer must comply with Iowa Sup.Ct. R. 31.14. That Rule requires a certain level of participation by an Iowa lawyer in the court or agency proceedings. The term "local counsel" has crept into our legal lexicon to describe the Iowa lawyer whose participation is required in order for the out-of-state lawyer to be admitted pro hac vice. Unfortunately, some have come to view the role of the "local" counsel as subservient to the non-Iowa lawyer who will, in effect, be the "lead" counsel. While some states may view the role of the "local" lawyer to be nothing more than a mail drop, Iowa does not. In Iowa there is no such thing as "local counsel" within the meaning ascribed above. At best, the relationship is one of "co-counsel" with the Iowa lawyer having certain responsibilities to both the client and the court. With this in mind, we turn to an analysis of the Iowa rules regarding pro hac vice admission.
The rights of pro hac vice lawyers are further limited by the requirements that: The Iowa lawyer must "actively" participate in the matter as counsel of record or co-counsel with the non-Iowa lawyer, (Iowa Sup. Ct. R. 31.14(3)(b) and Iowa R. of Prof'l Conduct 32:5.5(c)(1), hereinafter referred to as the "Active Participation Rule") and "…the in-state lawyer who is co-counsel or counsel of record for that client in the proceeding remains responsible to the client and responsible for the conduct of the proceeding before the court or agency…" (Iowa Sup.Ct. Rule 31.14(3), hereinafter referred to as the "Responsibility for Conduct Rule.") In essence, the Active Participation and the Responsibility for Conduct rules operate as substitutes for the requirement of admission by examination or upon motion to ensure the court and the client that legal services will be rendered consistent with the standard of care associated with a fully admitted Iowa lawyer.
The Responsibility for Conduct rule places a heavy burden on Iowa lawyers who agree to sponsor the admission of pro hac vice lawyers. The duty is owed to both the client and the court. Regarding the client, the Responsibility for Conduct rule requires that the Iowa lawyer forego the opportunity to limit the nature and scope of the Iowa lawyer's representation to the client, a right that would otherwise exist under Iowa R. of Prof'l Conduct 32:1.2(c). Likewise, Iowa lawyers have collaboration, consultation and advisory responsibilities to clients which include the obligation to engage in strategic planning dialogue,( Iowa R. of Prof'l Conduct 32:1.4(a)(2)) as well as an obligation under Iowa R. of Prof'l Conduct 32:1.4(b) to educate the client. The Responsibility for Conduct rule prevents these obligations from being delegated to the pro hac vice lawyer or otherwise limited by the Iowa lawyer under Iowa R. of Prof'l Conduct 32:1.2(c).
Active Participation Rule
The purpose of the Active Participation rule is to provide the client and the court with the assurance that the matter will be handled consistent with the standard of care and professionalism demanded of a fully admitted Iowa lawyer, as an officer of the court. Indeed, Iowa courts have held Iowa lawyers liable for the misdeeds of the pro hac vice lawyers, Ideal Instruments, Inc. v. Rivard Instruments, Inc. 243 F.R.D. 322, 348 (N.D. Iowa, 2007) imposing Fed R. Civ. P. 11 sanctions. See also, "Professional Responsibilities of CoCounsel: Joint Venturers or Scorpions in a Bottle?" 98 KY L.J. 461. We believe that the Active Participation rule is designed to complement the Responsibility for Conduct rule such that one cannot fully conduct litigation unless one actively participates in it. We recognize that there are certain limited situations where the pro hac vice lawyer can operate without the presence of the Iowa lawyer. However, to be consistent with the Active Participation and Responsibility for Conduct rules it is the Iowa lawyer who must determine what they are and set the operational parameters.
For example, after due diligence an Iowa lawyer may determine that his or her attendance at a deposition taken solely for discovery purposes is not necessary because the deposition is not likely to be used in evidence or to support a motion during litigation. In that situation the Iowa lawyer may be justified in allowing the client to be represented by the pro hac vice lawyer and not run afoul of Iowa R. of Prof'l Conduct 32:5.5 which prohibits assisting the unauthorized practice of law. Lastly, both the Responsibility for both the Responsibility for Conduct and Active Participation rules must be read in the context of the co-counsel relationship that exists between the lawyers and the reasonable division of duties between them. See, for example, Macawber Engineering, Inc. v Robson & Miller 47 F. 3d 253, 257-8 (8th Cir. 1995) where the court, applying similar Minnesota law, found no duty on local counsel to supervise the performance of pro hac vice counsel.
Read the full ethics opinion HERE.
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