Expert Advice

By Robert L. Ray
     
      Practice and Procedure
      When Every Appearance Counts
      Busy attorneys have always asked practitioner friends, colleagues, and sometimes opposing counsel to stand in for them at routine hearings. However, the practice became more common and structured in California with the passage in 1992 of the Trial Court Delay Reduction Act. (Cal. Gov. Code §§ 6860020.)
      Albeit necessary, this legislation presented a disproportionate hardship for attorneys faced with a multitude of hearings in different locales; they were subject to repeated sanctions and sometimes suffered dismissal of their clients' cases. For many, the solution was to hire contract attorneys.
     
      Legal Underpinnings
      A number of unresolved issues regarding contract appearances were settled several years ago, when a California court decided Streit v. Covington & Crowe (82 Cal. App. 4th 441 (2000)). The Streit court held that an attorney who makes a special appearance for another attorney's client is in an attorney/client relationship with that client. Thus, the appearing attorney owes the client a duty of care comparable to that of the attorney of record for the scope and duration of the appearance.
      California State Bar Formal Opinion No. 2004-165 also deals with issues raised by contract appearances, including the ethical responsibilities both of lawyers who use the services and of those who offer them.
      The opinion states that a lawyer's duty to inform a client about the contract arrangement depends on whether using contract counsel constitutes a "significant development," which is evaluated according to individual circumstances. It also emphasizes that the hiring attorney remains responsible to his or her client for the appearance, which includes competently supervising the contract attorney. And it reiterates that the contract attorney must comply with the ethics rules concerning competence, advertising, and conflicts that apply in such arrangements.
     
      Getting the Most from the Arrangement
      It is important to help the appearing attorney become properly prepared. Of course, that is the best way to ensure the best possible outcome of the hearing. But in addition, making sure the contract attorney is up-to-date on all the salient facts of the case is an integral part of your ethical obligation to supervise him or her.
      Hiring attorneys should also take a number of additional steps to ensure successful contract appearances.     

When contracting through an appearance service, ask about the training and selection process it uses for its contract attorneys. Beware of services that "blast fax" a prospective appearance to a horde of attorneys and assign it to the one who responds first.

     

Do not refer your appearance to a service that will not allow you to speak directly to the appearing attorney. The other side of this rule is, do not try to cut a side deal with the appearing attorney.

     

When dealing with any contract attorney, it is important not to withhold potentially damaging information about a case. If the appearing attorney has a chance to prepare for all possible circumstances, he or she will do a much better job when appearing for you. In defending depositions, for example, inform the contract attorney about how aggressive he or she should be in objections to problem questions.

     

Do not send a contract attorney on an appearance if you specifically have been ordered by the judge to appear in person-in contrast to pro forma orders stating that the plaintiff's or defendant's attorney must appear.

     

Do not send a contract attorney on an appearance at which the likely result is an involuntary dismissal or termination of your client's interests.

     

Do not refer appearances that by rule or practice require the presence of the trial attorney. Examples of these are trial-management conferences, trial-readiness conferences, and mandatory settlement conferences in some courts. In such circumstances it may, however, be possible to obtain leave of court for a contract attorney to appear on your behalf.

     

Be careful about assigning motions for a continuance of trial if you are not certain there is agreement with opposing counsel. You run the risk that upon denial of the motion, the contract attorney will become the (unprepared) trial attorney.

     

Finally, pay promptly for services rendered. You cannot predict when you might need contract counsel in another emergency-and your request may be denied if you have an overdue bill.

     
      Robert L. Ray (909/426-4848) owns Robert L. Ray & Associates, a statewide contract-appearance service in Colton.
     

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