Growing Significance & Relevance of Shadow Counsels

23rd June, 2018 - 12:52 pm Categories: IP Practice in India 0 Comments

Shadow Counsels (SC) are not a concept popularly exploited in India. However, their potential is yet to be discovered and realized in order for it to be part of our customary practice. The term ‘Shadow Counsel’ is used for any alternate or auxiliary lawyer appointed in case the original lawyer or the main counsel falters in any way. A Shadow Counsel monitors the case but doesn’t control it per se. The counsel is only to concern themselves with the ultimate outcome of the case and not to take active part in the day to day things. As the practice goes, the Shadow Counsel has all the liberty to attend the court proceedings but not to explicitly intervene. The primary job of the SC is determined based upon the stage at which they are called in and for the context of the matter that they are expected to address such as for a commercial dispute, commercial law issue of agreement vetting/drafting, IP portfolio monitoring/ due-diligence/ management/ strategy.

SCs are mostly engaged by corporations to facilitate legal workings of an entity. Some corporations even allow the SC to attend their Board Meetings so that they may foresee the legal repercussions of any decision taken by the Board. However, they are majorly engaged during trials so that they can rationalize the whole process. During an ongoing trial, it is quite frequent that the case deviates from its core issues and get muddled in the ancillary technicalities. The SC engaged with such a case has their primary concern attached with the bigger picture, or simply put, the outcome of the trial in its entirety. The SC is responsible for case assessment, strategy development and sometimes also for settlement evaluation. They can take care of preparing for any contingencies that may befall the main counsel and also remedy it, all to ensure that the trial’s outcome is favorable for their client without undue delays.

During the trial, a part of SCs’ responsibilities also extends to evaluate the main counsel’s work. They rectify any loopholes which may persist in paperwork or a line of argument, after the work of the main counsel is primarily finished. The SC exists as a contingency plan of the trial. They are responsible for vetting the work supplied by the main counsel and exercise their supervisory duties to remedy any lacuna. In most cases, a SC is hired to provide a fresh perspective to the case. They serve the purpose of a very necessary second opinion to either confirm the strategy chosen by the main counsel or to improve it. They add a touch of finesse to the phenomenon and make the process all the more efficient. Their job is to look at the case with a ‘bird’s-eye-view’ which gives them a holistic idea as to what the case needs and what it lacks. They are to foresee any issues which may arise in the trial and also to suggest and adopt preemptive measures to try and mitigate the damage or avoid it altogether.

The need for SC is rapidly being realized due to undeniably crucial role they can play. It is common that during a trial the outcome can sway at any given moment and therefore one can never be too careful. By engaging a Shadow Counsel, a much needed buffer can be added to the resources. More often than not, during a case, man-hours are wasted on the auxiliary things but with the help of an efficient Shadow Counsel  the case can be streamlined and the wastage of resources could be preemptively better utilized. Sometimes the Shadow Counsel is only employed to appropriately handle a particular part of the case and it is their job to ensure that it is concluded successfully and also that it neither interferes with any other aspect of the case nor does the case interfere with that particular task. There must be a particular proclivity to minimize the amount of financial resources engaged by the client. If they proceed to do their job competently then the client can save substantial amount of money since the resources are diverted towards necessary things and unwanted investments are minimized due to the streamlined, strategized approach. They minimize the risks of a major litigation process. Paying heed to their advice can redirect the course of the litigation in the favor of the client rather than going through the long and expensive process of prolonged litigation.

Apart from regular trial procedures, they are known to be engaged for the purposes of a criminal trial, insurance claims, multiple corporate representations, etc. In case of criminal trials, a shadow/standby counsel is appointed by the courts for any party who wish to proceed pro se, i.e. represent themselves without the assistance of a lawyer. The SC so appointed has to only assist the party and not steer the trial. In other cases if the defendant wishes to cooperate with the government or prosecution against the main defendants but cannot do so publically, the court allows the hiring of a shadow counsel who then steps in the interest of the particular defendant alone. This practice is actively undertaken during trials of drug cartels or major crime rings. In case of insurance claims, the Insured can hire a Shadow Counsel to supervise the records collected and made by the Insurer to ensure that the Insurer doesn’t exercise under bad faith, the contrary is also practiced. Furthermore, in cases where the main counsel is to represent the company as well as the employees against the allegations of a third party, a SC is engaged to prevent any conflict of interests which may arise between the interests of the company and that of the employee and they are to step in to either the employee or the company, should a conflict arise. Backup Counsels are also allowed for IPR procedures in the USA; they have the right to conduct business in the stead of the main counsel.

Apart from the known areas mentioned above, the services of SC can be utilized in various legal fields. They can greatly benefit corporations to rationalize their acts and decision making procedure with a view to cut back on any legal backlash. They can furnish efficient due diligence where agreements and legal documents are concerned. The entire functioning of businesses depends on the agreements drawn up by the legal teams of the companies, if these are weak then it leaves the entire entity vulnerable and potentially remedy-less. A Shadow Counsel can rectify any loopholes and provide the company with an iron-clad base to build their business transactions upon. Even with regard to filing and due diligence attached to Intellectual Property Rights, a proficient SC can be delegated the exclusive duty to handle the IP prosecution or litigation of a company to employ their predominant expertise which conclusively shortens the process of strengthening the IP portfolio of the company. The practice is cost-efficient and more importantly saves the company’s time and resources and guarantees the goal fulfillment for the company.

A Shadow Counsel can perform supervisory role or an ancillary function as per the needs of the client. Their valued addition as a legal resource enhances the efficiency of the main counsel and ensures that the objectives of the client are achieved in a cost-friendly and time-saving manner. Their involvement serves as an added benefit as opposed to risking the various loose ends in their absence. Thus, SC should swiftly become an indispensable part in the legal arena.

Author: Yashvi Padhya (Intern) and Tarun Khurana, at  Khurana&Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at pratistha@iiprd.com.