Special appearances require special consideration

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Ed Poll
Daily Record Newswire

Special appearances — in which a contract attorney makes a special court appearance on behalf of another lawyer — involve special considerations in order to ensure that such an arrangement does not become a liability situation.

Many firms, both large and small, use contract lawyers to provide legal counsel at a reduced cost. A contract attorney might make a special court appearance on behalf of the outsourcing attorney. This generally occurs in smaller communities, but quite a few attorneys in major metropolitan areas routinely make appearances for other lawyers as a professional courtesy and source of income to help out with a schedule conflict or to handle a routine matter. But are you aware that there can be a real problem with such a special court appearance arrangement?

The lawyer who engages the contract “pinch hitter” becomes responsible — in a malpractice sense — for any errors committed, even in a seemingly simple case. That may seem obvious, but think of the reverse scenario, in which the attorney making the special appearance becomes liable for the errors of the primary lawyer, or even of other lawyers who made previous special appearances.

Consider the 2000 case of Streit v. Covington & Crowe, in which the California Court of Appeal held that an associated attorney cannot escape liability from the duty of an attorney-client relationship by claiming that he or she made a “special appearance” only.

In that decision, plaintiff Streit named the firm Covington & Crowe in a malpractice action against her attorney, Diggs, even though the firm’s only contact with the plaintiff was making an appearance at a hearing on a motion for summary judgment, as a professional courtesy to Diggs.

The appeals court held that, in this instance, an attorney-client relationship was created by implication and that the division of effort by the attorneys was a distinction in degree, not a distinction in kind.

In the context of family law matters, the California courts may have addressed this issue by creating new forms in 2003. These are the most important ones:

• The “Notice of Limited Scope Representation” clearly delineates the purpose and duration of the special appearance and must be signed by the client, which acknowledges the limitation of the special appearance.

• The “Application to Be Relieved as Counsel upon Completion of Limited Scope Representation” (served on all parties of record) makes a request to be relieved as counsel of record.

But just serving the form doesn’t mean that the lawyer is done yet. A party to the action can object by filing an “Objection to Application to Be Relieved as Counsel upon Completion of Limited Scope Representation.” After a hearing on the matter, the court will make a ruling, after which an “Order on Application to Be Relieved as Counsel upon Completion of Limited Scope Representation” will be filed.

Sounds like a lot of work just to do a favor for a colleague, or for a relatively small amount of money, especially since the court is unlikely to order payment of legal fees for this process beyond what the client agreed to pay for the initial appearance or work.

You might think all this is just another example of “Left Coast” courts at work, but fast-forward to the East Coast in 2005, and the decidedly more conservative Florida Supreme Court. In Cowan Liebowitz & Latman, P.C. v. Kaplan, the court ruled that legal malpractice could be alleged against an attorney or law firm by a third party that had not retained the lawyer’s or law firm’s services. A third party that relied on the lawyer’s professional services —even if rendered on behalf of another — can sue if the lawyer failed to exercise due diligence and proper care and thereby damaged the third party.

That decision permitted creditors of an insolvent corporation to sue the lawyers who represented the corporation, accusing them of failing to disclose material information in private placement memoranda for the sale of shares.

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Edward Poll is the principal of LawBiz Management. He coaches lawyers and is the creator of “Life After Law,” a program that helps attorneys plan for profitable exits. He can be contacted at edpoll@lawbiz.com.

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