RJA drafting rules for substitute attorneys
RJA drafting rules for substitute attorneys
Senior Editor
Hoping for a simpler solution, the Rules of Judicial Administration Committee is taking its second stab at writing rules for the largely unregulated way attorneys arrange for substitutes at court appearances when they have a scheduling conflict.
The committee passed on first reading a proposed amendment to Rule 2.505 that could clarify which attorneys are authorized to represent a party and require covering lawyers, or stand-in attorneys as the rule refers to them, to file a notice of appearance unless they are from the same firm, company, or agency as the attorney of record in the case.
The committee acted June 15 at the Bar’s Annual Convention. The rule will come back for final approval October 19 at the Bar’s Fall Meeting in Tampa.
“What we’re trying to solve is the issue of how attorneys get in and out of a case and whether coverage attorneys should be there,” said Amy Borman, a former committee member who serves on the subcommittee working on the appearance rule.
She said the covering attorneys are not mentioned in Rule 2.505, which among other things governs how attorneys enter and leave cases. The practice of using covering or stand-in lawyers has largely evolved on its own with sometimes sketchy legal authority.
“There is caselaw out there that talks about when an attorney files something and they are not the attorney of record, what they file can be a nullity,” Borman said, adding that district courts of appeal are split on the issue. Some hold the filing is a nullity, which means it is as if it never happened, and some hold it is void, which can be corrected if the attorney files a notice of appearance.
“We have to give you the authority to do what you’re doing [as covering lawyers] but the compromise is you’re going to have to file [a notice of appearance],” she said.
Borman said in one criminal case, the defendant tried to withdraw from a plea agreement, but the covering attorney’s motion was struck as a nullity. By the time that was resolved, it was too late to change the plea. And in a recent 15th Circuit case, she said the judge struck a motion filed by a covering attorney who had not filed a notice of appearance. The judge declined to say whether it was a nullity or void.
Another problem is many court proceedings do not have a clerk and are not recorded, and sometimes after the fact, it can be difficult or impossible to tell what attorney or covering attorney was in court that day. Sometimes, Borman said, clients aren’t even sure who is representing them.
The subcommittee’s recommended solution was to allow another attorney from the same firm, company, or agency as the attorney of record to substitute for the attorney of record without filing a notice of appearance on the theory the firm or agency will know who was in court that day, Borman said.
For non-firm or non-agency covering attorneys, “An attorney may stand in for another attorney to cover a discrete proceeding or hearing only by filing a notice of stand-in counsel or announcing on the record, when applicable, an appearance as stand-in counsel,” according to the proposed rule.
Other committee members said many courts, such as small claims or traffic, will not work without the extensive use of coverage attorneys; that many covering attorneys do not understand that ethically they are representing the client and not the attorney they are appearing for; and that clients should agree in writing to the use of a coverage attorney.
“We are not professional wrestlers and we should not be tag teaming,” said committee member Rob Eschenfelder. “None of us would select a doctor if the doctor said, ‘By the way, I may not be the one showing up for your surgery. It might be someone else.’”
The proposed rule amendment specifies that an attorney appears for a party by signing the first pleading or the first document a party files in a case, by filing a notice of appearance, being the subject of a substitution order, filing a notice of substitution, or filing a notice of limited appearance. The current rule does not address coverage counsel or limited appearances.
The committee had previously submitted a more extensive amendment to Rule 2.505, which had more details about how attorneys get into and out of a case, and addressed the limited appearance of attorneys, including in civil cases. The latter issue had been recommended by the Vision 2016 commission to address cases in which a self-represented party hires an attorney to help in specific, limited issues, or circumstances. Last year, the Supreme Court rejected that amendment as too complicated.
“While the attempt to develop one body of comprehensive rules that classifies different types of representation and governs how attorneys appear and terminate an appearance in a case is laudable, we believe more refined rules that address these matters for each of the various practice areas should be considered; and there should be more active involvement of and communication between all the affected rules committees before new proposals are finalized,” the justices said in the per curiam opinion (Case No. SC16-1062).
They also said trying to combine the appearance rule with the limited appearance recommendations was confusing.
The new draft represents the committee’s effort to fix those difficulties and still address the uncertainties that surround the use of coverage or stand-in counsel.
While the committee passed the proposed rule 38-2, Chair Judson Cohen said revisions could be made before it comes up for final approval in October.
