In 2009 the Kentucky Supreme Court substantially revised the Kentucky Rules of Professional Conduct.
Articles in this index written before 2009 citing Kentucky Rules of Professional Conduct must be checked for any changes to the rule cited.

Do You Know How to Do the Pro Hac Vice and Avoid a Malpractice Claim?

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When an out-of-state lawyer wants permission to represent a client in a Kentucky court the lawyer must seek admission pro hac vice as required by SCR. 3.030(2). The Supreme Court amended this rule effective January 1, 2005 to include the requirement that the out-of-state lawyer pay a per case fee of $100 to the KBA. The rule now reads:

A person admitted to practice in another state, but not this state, shall be permitted to practice a case in this state only if he subjects himself or herself to the jurisdiction and rules of the court governing professional conduct, pays a per case fee of $100.00 to the Kentucky Bar Association and engages a member of the association as co-counsel, whose presence shall be necessary at all trials and at other times when required by the court. No motion for practice in any state court in this jurisdiction shall be granted without submission to the admitting court of a certification from the Kentucky Bar Association of receipt of this fee.

This change to the rule makes this an opportune time to consider the risk management implications of associating as co-counsel with an out-of-state lawyer practicing a single case in Kentucky. Note that the rule does not include specific conditions for eligibility for pro hac vice admission other than that the out-of-state lawyer be admitted to practice in another state. (Some states require a showing of good cause why the motion should be granted -- Kentucky does not.) Who is responsible for verifying that the out-of-state lawyer is admitted to practice in another state and is in good standing – the out-of-state lawyer, Kentucky co-counsel, the judge? What is Kentucky co-counsel’s responsibility for the case? Must co-counsel supervise the out-of-state lawyer with equal responsibility for the representation; or may co-counsel enter a limited scope representation that reduces exposure to the out-of-state lawyer’s malpractice? To demonstrate co-counsel’s risk in pro hac vice situations what follows is our report from a prior newsletter on Macawber Engineering Inc. v. Robson & Miller (CA 8, 47 F.3d 253):

Minnesota lawyers serving as local counsel for a New York law firm’s representation of a defendant sued in Minnesota recently dodged a bullet. The New York firm arranged for local counsel with the approval of the defendant. The New York firm had primary responsibility for the defense. Local counsel billed less than 10 hours for filing a pro hac vice petition and doing minor work on pleadings and discovery. The New York firm failed to timely respond to plaintiff’s 130 requests for admissions even though local counsel alerted them to the problem. After plaintiff was granted partial summary judgment, the defendant brought a malpractice action against both the New York firm and Minnesota local counsel.

The issue of local counsel’s liability boiled down to the question of whether the scope of local counsel’s engagement created a duty to the defendant to monitor lead counsel’s case management. The court found that engagement of local counsel does not automatically create a duty of care for the overall litigation on the part of local counsel. Here the defendant gave lead counsel primary responsibility for the representation. Local counsel accepted only limited responsibility for the matter and owed no duty of care to the defendant on the discovery aspect of the case.

Until there is some Kentucky authority available to clarify co-counsel’s responsibilities, it is not safe to assume that co-counsel can be little more than a potted plant during the representation even if that is what the out-of-state lawyer wants. To limit co-counsel’s malpractice exposure the following risk management ideas are offered:

  • Before agreeing to serve as co-counsel verify that the out-of-state lawyer is, in fact, admitted to practice in another state and is in good standing. A call to the out-of-state lawyer’s state bar should produce that information.
  • Confirm that the out-of-state lawyer has malpractice insurance and in what amount. Be sure that you are not the deep pockets in the case. Note that there is the anomaly that a Kentucky co-counsel practicing in a limited liability form of practice is required to have insurance, while the out-of-state lawyer may have no similar requirement (SCR 3.024). Check it out.
  • Be sure that the out-of-state lawyer is aware of the new per case fee requirement of $100.
  • Document thoroughly with a letter of engagement signed by the out-of-state lawyer and the client exactly what the scope of your engagement is and how you will meet your co-counsel duties.
  • Throughout the representation document telephone calls, meetings with the out-of-state lawyer, and all other aspects of co-counsel activities on behalf of the client.
  • Be sure that fee sharing arrangements comply with Kentucky Rule of Professional Conduct 1.5.(e). If you trip over this rule, you could be found to be jointly responsible for the matter in spite of efforts to limit the scope of the representation.

 


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