This Wisdom of the Crowd, compiled from responses posted on the Litigation and Small Law Departments eGroups,* addresses recommendations for in-house counsel asked to conduct litigation in-house without the assistance of outside counsel, including issues of bar admission within the United States.
I. Engaging in Litigation without Outside Counsel: In-house Perspectives
*(Permission was received from the ACC members quoted below prior to publishing their eGroup comments in this Wisdom of the Crowd resource.)
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I. Engaging in Litigation without Outside Counsel: In-house Perspectives
Question:
Our company wants me, as the only litigator on our team, to start drafting pleadings and attending mediations without outside counsel. Does anyone have any experience with this structure/approach? If so, can you give me details on how your approach works and whether you have to be barred in a state to appear as in-house counsel?
Wisdom of the Crowd
Response #1
I have seen some brave souls (or cheapskates) do this. If you are practicing exclusively within your state, that may not be an issue. The issue usually is unauthorized practice of law. Some states allow out-of-state licensed in-house counsel to do things within the states, minus court appearances. Others are more liberal. There's a list in the ACC resources (Right to Practice Rules for each state). Also, I can see an issue in terms of malpractice—i.e., how will it work if you miss a deadline or are assessed a personal penalty (however unlikely that is)? 1
Response #2
I have moved some litigation/mediation functions in-house for certain tasks when I have time and where it is simply more efficient for me/my assistant to handle because of access to and familiarity with documents and people. For example, document production preparation (redacting, bates #, etc.), some drafting duties for pleadings and briefs (underlying facts, some of the legal research and arguments unique to our industry, etc.), handling informal mediations, etc. HOWEVER, I have outside counsel do all the filings since their staff is familiar with e-filing rules in the various jurisdictions. I have appeared as co-counsel on some matters within the state where I am licensed. Although I've not looked at it in a few years, my understanding is that generally, if you are acting as a "lawyer" rather than a "corporate representative", you need to follow applicable rules of procedure as any other/outside counsel lawyer would - so, either being licensed to practice in that court or applying for pro hac vice. Also, you probably want to think carefully through any potential privilege issues and make sure your professional liability coverage is broad enough to cover your litigation activities.
Do you already have a litigation-savvy assistant or paralegal (or one you can train along the way)? If I didn't have an excellent assistant, there is no way I could make this work. 2
Response #3
[W]e've moved certain tasks in-house. We use a paralegal and my assistant to help with the specific tasks that we decide to do ourselves. All of our decisions are based on current workload and what effort will be required. Very small things we handle ourselves. But for the most part, our litigation is not little, so we have outside counsel as well.
I prefer to be involved in litigation since the real cases we face are for large design projects and these cases not only go for years, the deductibles and costs associated with them make it practical for us to work on the things where we can affect the bottom¬–line of the litigation budget most dramatically.
We deal with document production, first drafts of discovery responses and assist in review/drafting of other pleadings where we have a better understanding of the issues. Additionally, I want to keep responses consistent across the jurisdictions since the plaintiff's bar is fairly well organized and trades information on defendants readily.
You do need to have a staff that knows what it is doing and works well under deadlines. As for admission, I'm admitted in the major jurisdictions in which the corporation has facilities. As for other jurisdictions, most states now have a program for in-house counsel to be admitted without bar examination. Each has its own limits on what you can do and the ACC information is great at helping you sort that out. Outside counsel is also great at assisting in the paperwork necessary for pro hac admission, if that is necessary. I find that outside counsel enjoy assisting and are better advocates if we're involved and help them narrow things more quickly.
I have attended mediation and settlement discussions with and without outside counsel. If I understand the issues and know what I want as the resolution, I have no problem attending settlement/mediation without outside counsel. But, before I do, I weigh what outside counsel might get out of attendance if the discussion fails.
This may not directly answer the question, but hopefully will get you thinking along the lines that make sense based upon the risk tolerance of your entity and what your staff is capable of providing. If there are other questions, let me know. 3
1 PavelBespalko, Counsel, Russian Standard (Litigation, June 29, 2011).
2 Holly Saigo, General Counsel, Kimball Midwest (Litigation, June 30, 2011).
3 Dennis Stryker, General Counsel, Rick Engineering Company (Litigation, July 6, 2011).