District of Columbia: Duties of Local Counsel

The District of Columbia Court of Appeals has reminded the bar again that when an attorney undertakes to act on behalf of another person, no matter what the circumstances, he invokes upon himself the entire structure of the Code of Professional Responsibility. In re Thomas Fortune Fay, No. 14-BG-7 (D.C. March 19, 2015).

The Code does not and cannot create two tiers of ethical obligations, one for attorneys acting formally and for gain, and another for those who act for other reasons.

In this case, the attorney had agreed as a favor to file a personal injury suit for another attorney, Joel Chasnoff, who was a member of the Maryland bar. Mr. Chasnoff's membership in the D.C. bar had been suspended for his failure to pay dues, and therefor he asked the respondent attorney to sign his name to and file a complaint in the case. The respondent's paralegal and Mr. Chasnoff's secretary filed the complaint in the Superior Court, listing both the respondent and Mr. Chasnoff as attorneys.

Unfortunately, Mr. Chasnoff failed to serve the defendant with the complaint and the case was dismissed about three and a half months later. The respondent attorney received notice of the dismissal, and filed a motion to reinstate the case and for leave to make substituted service, but the motion was denied, and a second motion was also denied.

The client in the civil suit then brought a bar complaint against the respondent attorney. A Hearing Committee concluded that the attorney had entered into an attorney-client relationship with the complainant, and the Board on Professional Responsibility approved the Committee's findings and recommended that the attorney receive an informal admonition.

On review, the Court found that the attorney had entered into an attorney-client relationship with the plaintiff. As a starting point, the Court reviewed the basis upon which an attorney admitted to the District of Columbia is explicitly given the title of "officer of the court" and its accompanying duties.

The Court then noted that "the existence of an attorney-client relationship is not solely dependent on a written agreement, payment of fees, or the rendering of legal advice." The Court reasoned that an attorney's ethical responsibilities exist independently of contractual rights and duties; consequently, the obligations imposed by the Rules arise from the establishment of a fiduciary relationship between attorney and client. The attorney-client relationship is created usually when the client retains the attorney, but the relationship may also be created by court appointment. The attorney-client relationship does not rest on the client's view of the matter. The Court instead considers the totality of the circumstances to determine whether an attorney-client relationship exists.

Here, the attorney had authorized the filing of the complaint with his signature and bar number and later initiated and filed an additional pleading in which he identified himself as the plaintiff's attorney. As an officer and fiduciary, the respondent attorney represented to the court, through his filings, that an attorney-client relationship existed.

Significantly, the Court noted that like local counsel facilitating the practice of an attorney admitted pro hac vice, the respondent attorney was responsible for the case in the event that Mr. Chasnoff failed to adequately pursue it. By asserting his bar membership to aid Mr. Chasnoff in presenting the claim, the respondent attorney, like local counsel, assumed the ethical responsibilities and duties as plaintiff's attorney.

The Court agreed with the Board and the Hearing Committee that the respondent attorney couls not now deny his professional relationship with the plaintiff, which he earlier represented to the court as existing.

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This opinion should give D.C. attorneys reason to pause and think before undertaking to serve as local counsel in a case, or before, as here, agreeing as a favor to file a case for an attorney whose D.C bar membership has temporarily lapsed. A member of the D.C. bar who signs and files a suit in Superior Court under those circumstances is nevertheless responsible for the case in the event the purported lead counsel fails to adequately pursue it.

To discuss the defense of lawyers' professional responsibility matters, legal malpractice defense, and the legal ethics rules in the District of Columbia, contact John Tremain May of Jordan Coyne LLP at 703-246-0900.

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