One of the better known quirks of Delaware practice is the requirement of association with "Delaware Counsel." This requirement is more stringent than any other jurisdiction that I know of, requiring a Delaware lawyer to sign and file all papers in the action:
Association with Delaware counsel required. Unless otherwise ordered, an attorney not admitted to practice by the Supreme Court of the State of Delaware may not be admitted pro hac vice in this Court unless associated with an attorney who is a member of the Bar of this Court and who maintains an office in the District of Delaware for the regular transaction of business (“Delaware counsel”). Consistent with CM/ECF Procedures, Delaware counsel shall be the registered users of CM/ECF and shall be required to file all papers. Unless otherwise ordered, Delaware counsel shall attend proceedings before the Court.
Although the requirement itself is generally well known, the highlighted clause is fairly obscure, and I don't believe I've ever seen cited in an opinion. Until today, that is, when Judge Connolly issued a brief order in Sage Chemical, Inc. v. Supernus Pharmaceuticals, Inc., C.A. No. 22-1302 (D. Del. Dec. 20, 2022):
It came to the Court's attention this afternoon that the Clerk's Office inadvertently allowed [Plaintiffs' counsel] to make electronic filings for Plaintiffs. Although [Plaintiffs' counsel] is a member of this Court's bar, his firm does not have a Delaware office and he is therefore not authorized to make filings with the Court unless and until the Court has approved an application made by him under Local Rule 83.5(f)(2).
Further, given the nature of this case, the Court does not believe that exceptional circumstances exist to justify approving an application by [Plaintiffs' counsel] under Local Rule 83.5(f)(2). Accordingly, if Plaintiffs wish to pursue this matter in this Court, Plaintiffs need to retain a Delaware lawyer with a Delaware office.
Ouch.
It's not clear from the docket exactly how this issue came to the Court's attention—there is, for instance, no letter from defendant calling the issue to the Court's attention. A brief review of Plaintiffs' filings (the earliest of which was about 10 weeks ago) shows that the DE counsel block lists a DE bar ID for signing counsel but included only a Philadelphia address. It seems to be just a case of eagle eyes.
For those wondering, the specific local rules section cited in the order is:
Attorneys who are admitted to the Bar of this Court and in good standing, but who do not maintain an office in the District of Delaware, may appear on behalf of parties upon application to the Court.
This is another piece of the rules I'd never seen adjudicated. Interestingly, Chief Judge Connolly put a bit of gloss on what such an "application" would require, stating:
Plaintiffs, for example, are not government agencies; nor do they appear to suffer from financial hardship.
So there you have it—another reason to move to the great state of Delaware. More to come in our seasonal guide to the treasures of the first state.
[UPDATED] This Isn't the First Order Like This
Editor's note on the above: this actually isn't the first time that the Court has issued an order along these lines. Chief Judge Connolly issued a very similar order in Global Citizens Initiative, Inc. v. GC UK Trading Limited, C.A. No. 21-170-CFC, D.I. 7 (D. Del. May 12, 2022).
The order in Global Citizens included the same overall language and the same footnote, although it was directed to a different attorney who lacked a Delaware office.
So, practitioners take note—you need a Delaware office to practice in D. Del.!
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