By Gary Blankenship
A procedural rule governing when attorneys use “covering” or substitute attorneys for court appearances is being worked on by the Rules of Judicial Administration Committee.
The committee asked the Board of Governors’ Board Review Committee on Professional Ethics for advice on the ethical ramifications of the tentative rule, but the BRCPE reported to the board at its May meeting that at the moment there are no ethical questions it can answer.
Rules committee members have been grappling with the makeup and variable roles of coverage attorneys. Sometimes it’s an associate in the attorney of record’s firm; sometimes it’s an outside attorney; and sometimes it may be attorneys swapping cases so that each one only needs to appear in one courtroom. Some appear only on minor issues, such as seeking a continuance, while some may argue motions. Sometimes clients may be notified, but many times clients are not consulted or asked to consent to using a coverage attorney.
“A lawyer may have multiple cases called up, and so these covering attorneys get hired by the attorney and they come into the courtroom and say, ‘I’m here for the client,’” said RJA member Murray Silverstein.
Frequently all the coverage attorneys do is request a continuance or handle a similarly minor issue.
“It’s relatively benign if that’s all they do, if they’re just there to pinch hit, and they’re not doing anything substantive,” Silverstein said. “But as dockets become bigger, it’s become a regular need, and there are firms and lawyers who hold themselves out as providing coverage . . . .They’re coming into court and announcing they’re there on behalf of so and so . . . and they don’t file a notice of appearance, and they don’t affirm that the client has been notified.”
Information provided to the Board of Governors cited one case where the attorney of record arranged for a covering attorney to seek a continuance in a traffic case. The covering attorney told the police officer involved in the case about the continuance and the police officer left. But when the traffic hearing officer called the case, the client objected to the covering attorney representing him, said he wanted to fire the attorney of record, and proceed with the case that day representing himself. The traffic hearing officer declined to go forward since the police officer had left, which left the client unhappy.
At the board meeting, BRCPE Chair Carl Schwait noted that it’s not uncommon, if foreclosure cases are being heard in several courtrooms simultaneously at one courthouse, for attorneys to cover each other’s cases so the attorneys can stay in one courtroom rather than run back and forth. Likewise, in rural areas, attorneys may get together and divide traffic cases by county to cut down on travel time and expenses.
Schwait called it an interesting issue with potential ethical implications, but he said there was nothing the BRCPE could do yet.
“This came in front of us [the BRCPE] and the decision we made is if you don’t have a motion, we can’t help, and for that reason we said [to the RJA], ‘You see us in the future,’” Schwait told the board.
“We had a terrific conversation, but there wasn’t anything we could do.”
Silverstein and Paul Regensdorf, another member of the RJA Committee, said the rules committee would be discussing a rule amendment when it meets later this month at the Bar’s Annual Convention.
“We’ve got to find a way to get them [coverage attorneys] in the case properly and professionally, and get them out of the case properly and professionally,” Regensdorf said.
Attorneys who provide coverage services have an interest in seeing their appearances done properly, because, with the growing electronic court system, they might find themselves deluged with service of case filings and paperwork long after their limited part is over, he noted.
“With the computers and electronic filings, when you put your name on a document, even though you only intend to be in that case one day, it’s like the Hotel California: You can check in but you can’t check out,” Regensdorf said.
Preliminary drafts for amendments to Rule of Judicial Administration 2.505 call for coverage attorneys to file a notice when they appear in a case — although that could be done right after their initial appearance — and file a notice when they are done with the case. They also define the “attorney of record” as the primary attorney responsible for the case. When a coverage attorney withdraws, the notice must clearly identify the primary attorney who retains responsibility for the case.