Formal Advisory Opinion No. 05-10
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FORMAL ADVISORY OPINION NO. 05-10
Approved And Issued On April 25, 2006 Pursuant To Bar Rule 4-403
By Order Of The Supreme Court Of Georgia Thereby Replacing FAO No. 98-1
Supreme Court Docket No. S06U0803
Can a Georgia attorney, who has agreed to serve as local counsel, be disciplined for discovery abuses committed by an in-house or other out-of-state counsel who is not a member of the State Bar of Georgia?
A Georgia attorney, serving as local counsel, can be disciplined under Rule 5.1(c) for discovery abuses committed by an out-of-state in-house counsel or other out-of-state counsel when the local counsel knows of the abuse and ratifies it by his or her conduct. Knowledge in this situation includes "willful blindness" by the local counsel. Local counsel can also be disciplined for discovery abuse committed by an out-of-state in-house counsel or other out-of-state counsel when the local counsel has supervisory authority over the out-of-state counsel also in accordance with Rule 5.1(c). Finally, the role of local counsel, as defined by the parties and understood by the court, may carry with it affirmative ethical obligations.
A client has asked in-house or other out-of-state counsel, who is not a member of the State Bar of Georgia, to represent him as lead counsel in a case venued in Georgia. Lead counsel associates local counsel, who is a member of the State Bar of Georgia, to assist in the handling of the case. Local counsel moves the admission of lead counsel pro hac vice, and the motion is granted. During discovery, lead counsel engages in some form of discovery abuse.
Discipline of local counsel for the discovery abuse of lead counsel would, in all cases, be limited to discovery abuse that is in violation of a particular Rule of Professional Conduct. If the discovery abuse is a violation of a Rule of Professional Conduct, for example, the destruction of documents subject to a motion to produce, Rules 5.1(c) and 3.4(a) defines local counsel's responsibility for the abuse. Because Rule 5.1(c) is entitled "Responsibilities of a Partner or Supervisory Lawyer" it may not be obvious to all attorneys that the language of this statute applies to the questions regarding ethical responsibilities between lead and local counsel. Nevertheless, the language of the Rule clearly applies and is in accord with common principals of accessory culpability:
A lawyer shall be responsible for another lawyer's violation of the Georgia Rules of Professional Conduct if: (1) The . . . supervisory lawyer orders, or with knowledge of the specific conduct, ratifies the conduct involved; . . . .
Under this Rule the extent of local counsel's accessory culpability for lead counsel's discovery abuse is determined by the answers to two questions: (1) What constitutes knowledge of the abuse by local counsel? (2) What constitutes ratification of the violative conduct by local counsel?
Actual knowledge, of course, would always be sufficient to meet the knowledge requirement of this Rule. Consistent with the doctrine of "willful blindness" applied in other legal contexts, however, sufficient knowledge could be imputed to local counsel if he or she, suspicious that lead counsel was engaging in or was about to engage in a violation of ethical requirements, sought to avoid acquiring actual knowledge of the conduct. The doctrine of "willful blindness" applies in these circumstances because local counsel's conduct in avoiding actual knowledge displays the same level of culpability as actual knowledge.
Thus, if local counsel was suspicious that lead counsel was "engag[ing] in professional conduct involving dishonesty, fraud, deceit, or misrepresentation" in violation of Rule 8.4(a)(4), local counsel would meet the knowledge requirement of accessory culpability if he or she purposely avoided further inquiry. What would be sufficient suspicion, of course, is difficult to determine in the abstract. To avoid the risk of the effect of the doctrine of willful blindness, a prudent attorney should treat any reasonable suspicion as sufficient to prompt inquiry of the in-house or other out-of-state counsel.
What constitutes ratification is also difficult to determine in the abstract. Consistent with the definition of accessory culpability in other legal contexts, however, an attorney should avoid any conduct that does not actively oppose the violation. The specific conduct required may include withdrawal from the representation or, in some cases, disclosure of the violation to the court. Which measures are appropriate will depend upon the particular circumstances and consideration of other ethical requirements. In all circumstances, however, we would expect local counsel to remonstrate with lead counsel and to warn lead counsel of local counsel's ethical obligations under Rule 5.1(c).
Other than accessory culpability, and depending upon how the parties and the court have defined it in the particular representation, the role of local counsel itself may include an affirmative duty to inquire into the conduct of lead counsel and other affirmative ethical obligations. This is true, for example, if the court understands the role of local counsel as carrying with it any direct supervisory authority over out-of-state in-house counsel or other out-of-state counsel. In such circumstances, Rule 5.1(c) provides:
A lawyer shall be responsible for another lawyer's violation of Rules of Professional Conduct if: (2) the lawyer . . . has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Furthermore, at times lead and local counsel may have defined the relationship so that it is indistinguishable from that of co-counsel. In such cases the usual principles of ethical responsibility apply. Even short of this co-counsel role, however, typical acts required of local counsel such as moving of admission pro hac vice or the signing of pleadings, always carry with them affirmative ethical obligations. For example, in this, as in all circumstances, the signing of pleadings by an attorney constitutes a good faith representation regarding the pleadings and the conduct of the discovery procedure of which the pleadings are a part. There is nothing in the role of local counsel that changes this basic ethical responsibility. Local counsel, if he or she signs the pleadings, must be familiar with them and investigate them to the extent required by this good faith requirement.
Finally, there is nothing in the role of local counsel that excuses an attorney from the usual ethical requirements applicable to his or her own conduct in the representation, either individually or in conjunction with lead counsel. If local counsel engages in any unethical conduct, it is no defense to a violation that the conduct was suggested, initiated, or required by lead counsel.
Generally, Rules 1.2(a) and (d); 1.6; 3.3(a)(1) and (4); 3.3(c); 3.4(a), (b) and (f); 3.5(b); 4.1(a); 4.2(a); 4.3(a) and (b); 5.1(c); 5.3; 5.4(c); 8.4(a)(1) and (4) may apply to the conduct of local counsel depending upon the degree of local counsel's involvement in the discovery process. While all these Rules might not be applicable in a given case, taken together they cover the range of conduct that may be involved.
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