My law firm, Riezman Berger, is based in St Louis, Missouri. We do work, however, throughout the region and the nation. A few weeks back, I had to drive to a meeting in our neighboring state of Kansas.
I only possess a Missouri’s driver’s license. Given the rarity with which I need to drive in Kansas and the limited duration of this particular trip, it seemed the inconvenience of studying and testing for a Kansas driver’s license outweighed the benefits. So, I instead asked my friend from Kansas (who is licensed to drive in that state) to support my request for a temporary Kansas license. It would be valid only for my one trip, but it would serve my needs.
My friend agreed to help me, and my request was approved by the Kansas DMV shortly thereafter. I happily reviewed the DMV’s proclamation upon its arrival and began to prepare for my trip.
Then, the day before I was scheduled to depart, my associate walked into my office and asked where I was meeting Debra, my Kansas friend. When I explained I hadn’t planned to meet Debra on this trip at all, my associate simply shook his head.
“Under Kansas rules,” he informed me, “Debra still has to remain ‘actively involved’ in the driving expedition.”
When a quick glance at the DMV’s pamphlet confirmed his words, I picked up the phone and gave Debra a call, hoping she could explain exactly how involved the “actively” requirement required her to be.
Alas, she was as surprised as I to learn of the rule’s constraint, and could provide no advice. Having no real choice, we made arrangements for her to meet me at the border, and agreed that she would alternate the driving chores with me. Needless to say, the “you owe me one” meter then tipped heavily in her favor.
Hopefully by now you, dear reader, are chuckling or at least shaking your head in mirthful skepticism.
Of course, in the world of driving, a license from one state is given full faith and credit in another and no local driver is really needed.
Unfortunately, in the practice of law, however, there is no such bright line rule for lawyers seeking to practice law in jurisdictions other than where they are generally licensed. In fact, the treatment given this matter varies from place to place.
Some states and federal jurisdictions allow an out of state/non-admitted lawyer to practice in their courts upon submission of an application, the taking of an oath, and the payment of a fee. No participation of an attorney from the local venue is required at all. Others, however, require a local attorney to submit the application seeking approval of the out of town attorney.
Still others require a local attorney to submit the application and to join the legal team as local or co-counsel, although no particular role is required. Moreover, still others require, like the fictitious DMV in the story above, that the local lawyer submit the application to allow the out of state lawyer to participate, join as local counsel, and then “actively participate” in the representation.
In this latter situation, however, it is not exactly clear what is meant by active participation.
Is the occasional review of a pleading sufficient or must the local lawyer participate in strategy and take responsibility for deadlines? The uncertainty the rule causes tends to result in more, rather than less, participation by the local lawyer, even though this results in higher costs to the client than might otherwise be necessary.
Why is there such a divergence in the various jurisdictions’ views as to the necessity and role of a local attorney? In all likelihood, it’s because there are different rationales underlying the seemingly similar rules.
In jurisdictions where no local lawyer is required at all, or where no participation is required once the motion for admission is filed, the reasoning appears to be one of full faith and credit.
Those jurisdictions view admission to their bar as proof that the attorney has mastered a certain degree of ability, measured by the bar exam. They are willing to trust that any attorney admitted by a sister state has been shown to have sufficient knowledge, and thus let him or her participate.
These states view the reciprocity of licensing in the driving context and the lawyering one to be the same.
The jurisdictions which require a local attorney to be involved in the case appear to be focusing on oversight of the case itself, rather than the general competence of the attorney involved.
By requiring an attorney who answers to the court on a daily and regular basis to be involved, these venues ensure there will be an attorney involved who will not want his or her future interactions with the court to be tainted by any ill-conceived notions in the subject case.
When an attorney knows he or she shall see the same judge again next week, the court’s words of caution and sanction are taken more to heart. Of course, the cynics in the crowd also would mention, no doubt, that the latter view requiring local counsel participation also ensures that a lawyer of the local bar gets work, even when the parties involved in the dispute choose out of state counsel.
This also creates an incentive for clients to hire local attorneys directly rather than use out of state counsel at all, so as to avoid the double costs that come with the use of outstate counsel and local counsel together.
This perhaps brings us to the crux of the inquiry that is never made. In state court, the participation of a local lawyer familiar with his state’s procedural rules may continue to make sense. In federal court, however, why is local counsel needed at all? The procedures are supposed to be the same in all federal courts.
Most matters are resolved “on the papers” without any in-person arguments. Those hearings which are held are conducted telephonically or require the lead lawyer’s appearance. Electronic filing procedures enable an attorney to file pleadings with federal courts from anywhere in the world.
The long arm of the federal bench surely commands the respect of any federally licensed attorney, even if his or her residence is miles from that of the Court in which he or she is appearing.
Litigation is already so expensive that its price tag affects the ability of the parties’ to get justice.
Removing rules that serve to increase the costs of the process by unnecessarily including multiple attorneys, at least on the federal level, would be a good thing.
Now, we just need someone willing to drive that point
home.