Opinion 93-2
(1993)

Inquirer seeks guidance from the Professional Guidance Committee regarding her continuing ethical responsibilities as local counsel for Plaintiff in an antitrust and RICO federal court action after she has been informed that Plaintiff will no longer pay for her services and after the Court has denied her motion for leave to withdraw.

Inquirer requests that the Committee assume the following facts. Inquirer was retained to be local counsel only, which she understood to mean that her primary responsibility would be to assist in filing and serving documents, and to educate lead counsel about local practices in the Eastern District of Pennsylvania. Plaintiff recently advised lead counsel that it would not and could not pay for services rendered. On that basis, Inquirer and lead counsel filed a motion for leave to withdraw, which the Court denied unless substitute Counsel entered its appearance. No replacement counsel has been located.

Lead counsel is now proceeding with discovery and preparation of the case, and Inquirer seeks guidance regarding her obligations to incur costs for expert testimony and deposition transcripts, which Plaintiff cannot or will not pay 1.

The Rules of Professional Conduct require that a lawyer fulfill all obligations under the Rules, including, for example, those requiring competence, diligence and communication, see Rules 1.1, 1.3 and 1.4, regardless of whether she is compensated by the client for the representation. The Rules permit, however, that a lawyer may withdraw from a representation, even if the lawyer's withdrawal may have a material adverse effect on the interests of the client, if:

The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; or the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.

Rule 1.16(b)(4),(5). Plaintiff's refusal to pay Inquirer's fees and expected future costs of litigation, therefore, presents a permissible basis for withdrawal under these two provisions.

Inquirer advises, however, that she has already petitioned the Court for leave to withdraw and the Court denied the petition, notwithstanding Inquirer's good cause. Inquirer is therefore required to continue her representation of Plaintiff. See Rule 1.16 (c) (When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.) Further, because the Rules neither release nor relax a lawyer's ethical obligations in the event that a client ceases paying its lawyer, Inquirer remains obligated to fulfill her ethical obligations regardless of whether she will be paid.

Inquirer specifically poses the question of whether during the course of litigation she is obligated to pay for the expense of expert testimony and deposition transcripts. The general answer is that Plaintiffs' counsel must perform diligent and competent representation and if they reasonably believe that such testimony and transcripts are necessary to the diligent and competent representation then such costs should be incurred. If such testimony and transcripts are not reasonably necessary, then there is no obligation to incur these costs. The Committee expresses no view regarding whether such testimony and transcripts are reasonably necessary as it does not have sufficient information regarding the issues in the underlying litigation.

Whether Inquirer or lead counsel (or both) is responsible for such costs, if it is determined that expert testimony and deposition transcripts are necessary, turns on the scope of the limitation on Inquirer's representation of Plaintiff. As a general matter, the scope of a lawyer's obligations may be limited by agreement with the client. Rule 1.2(c) recognizes that a lawyer and client may agree to restrict the scope of the lawyer's representation as long as the client consents after full disclosure of such a limitation:

A lawyer may limit the objectives of the representation if the client consents after a full disclosure of the circumstances and consultation.

In addition, according to the Comment on Rule 1.2, the limitation of scope may not violate any applicable law 2.

Rule 1.2 generally has been interpreted to permit a lawyer and client to agree that (a) the lawyer will handle only certain types of claims and not others; (b) the lawyer will represent the client on a specific transaction without assuming any general duties to the client beyond the sufficiency of relevant documents; or (c) that litigation will only be conducted at the trial level. See ABA/BNA Lawyers' Manual on Professional Conduct, 31:307 (collecting cases). Consistent with these interpretations, the Committee believes that a lawyer and client may limit the scope of the lawyer's representation only to those local tasks that Inquirer has agreed to undertake (i.e., assist in filing and service of documents and to educate lead counsel as to the local practices in the Eastern District of Pennsylvania) as long as two conditions are met: (1) the client consents after full disclosure of the limited role of the lawyers' responsibilities in the representation of the client's matter and (2) other applicable law, such as the Federal Rules of Civil Procedure and Local Rules of Civil Procedure of the Eastern District of Pennsylvania, permit the proposed limitation 3.

Accordingly, if the Inquirer has made the required disclosures and obtained Plaintiff's consent to her limited local counsel representation and there is no other legal bar to that role, then the Committee concludes that the Inquirer may continue that limited role, not expand the scope of her representation beyond that of local counsel, and not incur the costs for expert testimony and deposition transcripts.

Notes

1. Inquirer also requests advice concerning the obligations of lead counsel, which is located in another jurisdiction. The Committee declines to render such advice because it only renders advice regarding an Inquirer's ethical obligations, not the ethical obligations of third parties. Lead counsel, because it is subject to the Rules of Professional Conduct as adopted by the Supreme Court of Pennsylvania may seek directly guidance from the Committee. See Local Rule 14, Rule IV, Local Rules of Civil Procedure for the Eastern District of Pennsylvania.

2. The Comment to Rule 1.2 states in pertinent part: An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1, or to surrender the right to terminate the lawyer's services or the right to settle litigation that the lawyer might want to continue.(Emphasis supplied).

3. The Committee does not render guidance on issues other than the interpretation of the Rules. The Inquirer, however, should be mindful of whether her local counsel arrangement comports with, inter alia, her obligations pursuant to Federal Rule of Civil Procedure 11.

   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.