Thinking Ethics
Always Responsible: The Kansas Local Counsel By Hon. Steve Leben, Kansas Court of Appeals, Topeka
T
he common disclaimer—“Your experience may vary”—added to the end of an advertisement signals that your experience using the advertised product is unlikely to match all of the claims you’ve just heard, seen, or read. But it’s also a useful reminder that we will have different experiences in a variety of contexts, something of importance if you ever serve as Kansas counsel to an out-of-state attorney involved in litigation here. Out-of-state lawyers may have a very different experience with local-counsel requirements than we’re used to in Kansas. And our requirements in Kansas state court have been strengthened even further effective July 1. So let’s take a moment to consider them—in context. Part of the context is that it’s hard to be sure that the outof-state attorney you are working with comes from a similar background. A Westlaw search finds more than 25 articles in legal texts and periodicals using the words “mail drop” close by the term “local counsel.” But that form of local-counsel practice has not been accepted in Kansas for decades. Since at least the 1980s, Kansas state and federal court rules have required that local counsel sign all pleadings, documents, and briefs.1 Two recent developments have underscored the importance of diligently carrying out these duties as local counsel. First, in In re Roswold,2 the Kansas Supreme Court suspended an attorney’s license because he failed to heed rules governing the admission of out-of-state counsel pro hac vice and failed himself to provide adequate representation to the client. In that case, James Roswold and Mark Schmid were law partners, but Schmid officed in Missouri and wasn’t admitted in Kansas. Schmid accepted a Kansas medical-malpractice case and Roswold signed the petition, which Schmid prepared. Roswold never met the client, didn’t make sure the case was progressing properly, and didn’t get Schmid admitted pro hac vice. Serious problems arose when a defense motion for summary judgment arrived, was given to Schmid, and Schmid neither responded nor told Roswold. The rest of the story is a bit involved, but Roswold ended up in disciplinary trouble, something that the Kansas Supreme Court said underscored the importance of the rule requiring pro hac vice admission of out-of-state attorneys. The Court noted that the rule also requires that Kansas counsel be “actively engaged” in the lawsuit. And the Court rejected the disciplinary panel’s recommendation of public censure, opting instead to suspend Footnotes 1. Steve Leben, Rule 11 Sanctions: The Special Problem of Local Counsel, 58 J. Kan. B. Ass’n 17, 17 (June 1989). 2. 292 Kan. 136, 249 P.3d 1199 (2011). 3. Kan. Ct. R. 1.10, 116 (available in amended form at www.kscourts. org).
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Roswold’s license for one year (with an option to seek reinstatement after six months). Second, consistent with Roswold, the Kansas Supreme Court has amended the rules on pro hac vice admission, effective July 1.3 In the district courts, Rule 116 requires that out-ofstate counsel be admitted pro hac vice “as soon as reasonably possible.” In the appellate courts, the motion must be filed when the case is docketed or, if the motion relates to briefing or oral argument, at least 15 days before the brief ’s due date or the oral argument date. Local counsel remains obligated to sign all pleadings, documents, and briefs. In addition, local counsel must be present at all court appearances, administrative hearings, depositions, and mediations; the appellate rule specifically covers oral arguments and prehearing conferences. Rule 116 also emphasizes that local counsel must “be actively engaged in the case” before the district court. The rule contemplates that counsel may be excused from attending depositions or mediations “by the court or tribunal or under local rule.” Neither Rule 116 (district courts) nor Rule 1.10 (appellate courts) has a provision to excuse local counsel from attending court proceedings. Attorneys providing local counsel services in federal court should review D. Kan. Rule 83.5.4, which has somewhat less stringent requirements. It requires that local counsel “participate meaningfully in the preparation and trial . . . to the extent the court requires,” which gives considerable leeway in administration but mirrors the state-court requirement that local counsel sign all pleadings and court papers. Keep in mind, too, that the signing requirement triggers the prospect of sanctions under federal Rule 11 or K.S.A. 60-211, something that can happen to local counsel.4 Counsel who act as local counsel for out-of-state attorneys in Kansas state courts should carefully review the new versions of these rules. n About the Author Hon. Steve Leben has been a member of the Kansas Court of Appeals since 2007. Before that, he was a district judge in Johnson County for nearly 14 years. He has been a copresenter of Ethics for Good, a CLE program presented each June in the Kansas City area, for 13 years. 4. See Peter E. Heuser & Elizabeth A. Tedesco, Local Counsel: Take the Job Seriously, or Don’t Take the Job, 56 Fed. Lawyer 20, 20-21 (June 2009); Leben, supra note 1, at 19-20. Each of these articles has suggestions local counsel might consider in making sure that their obligations are met. Heuser & Tedesco, supra at 21; Leben, supra at 21-22.
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