On December 7, 2022, the Idaho Supreme Court issued an opinion in Schiermeier v. State of Idaho. This post will focus not on the merits of that decision, but on the Court’s “necessary discussion regarding the conduct of counsel.”

In Idaho, out-of-state attorneys may practice law only if they associate with local counsel and apply for pro hac vice admission. Idaho Bar Commission Rule 227. Local counsel, at the very least, must familiarize out-of-state counsel with the standards and expectations governing the practice of law in Idaho, and ultimately local counsel “take[s] responsibility for the conduct of out-of-state counsel.” To discharge that duty, local counsel must sign all submissions (certifying that local counsel has read the submission) and appear at all proceedings with out-of-state counsel (unless the requirement has been waived).

In Schiermeier, the petitioner retained an out-of-state attorney. In his briefing and at oral argument, the out-of-state attorney “made repeated ad hominem attacks on the district court judge . . . suggesting that Schiermeier had not and would not receive a fair hearing in the district court and that the district court judge was not intelligent enough to understand the arguments made at trial.” The out-of-state attorney “also made disparaging comments” about his client’s public defender and opposing counsel.

The Court found that the comments “were uncalled for and inappropriate,” so it took “the unusual step of publicly issuing a written warning to” the out-of-state attorney. The Court did not stop there, as it also issued a warning to local counsel—even though he did not make the inappropriate comments. The Court emphasized that it “require[s] association with local counsel to ensure that out-of-state attorneys are familiar with the standards and expectations governing an Idaho counsel’s behavior and that local counsel will then take responsibility for the conduct of out-of-state counsel who operate within [Idaho’s] court system.”

Practice Pointers.

1. Hiring local counsel is not a mere formality. Idaho courts expect local counsel to play an active role in litigation, even if an out-of-state attorney takes the lead. There can be serious consequences if an out-of-state attorney does not know how to practice in Idaho.
2. Serving as local counsel is not a mere formality. Thankfully, Idaho is an unusually collegial place to practice law—as symbolized by the Court’s unique practice of shaking hands with counsel after oral argument. The expectation of collegiality applies equally to out-of-state attorneys, and it is local counsel’s responsibility to ensure those standards are met. Local counsel can be held responsible for an out-of-state attorney’s shortcomings.
3. This is not the first time in recent history that the Court has emphasized the importance of local counsel. At an oral argument in 2020, the Chief Justice chastised out-of-state and local counsel for failing to follow Idaho’s rules. The Chief Justice noted that Idaho has high standards for counsel, and there is an even higher standard for local counsel to make sure Idaho’s standards are followed. The full discussion can be found here.
4. In the past, the Idaho Supreme Court has been relaxed about requiring local counsel to appear at oral arguments. More recently, the Court has changed tack—perhaps because of its recent emphasis on the serious obligations of serving as local counsel.