Florida Bar Directive for Continuing Representation
Panel continues work on temporary representation issues
Panel continues work on temporary representation issues
Senior Editor
A Bar rules committee has reviewed a proposed rule for how attorneys can temporarily get involved in ongoing cases, but sent it back to a subcommittee for more work.
The Rules of Judicial Administration looked at proposed changes to Rule 2.505 prepared by a subcommittee when it met June 26 at the Bar's Annual Convention. The subcommittee had asked for an approval in concept, which would allow it to tweak the rule and present it for final approval when the committee meets in October.
Although committee members expressed support for the ideas presented, they sent the amendments back for more work without conceptual approval.
Amy Borman, chair of the subcommittee, said the issue of how coverage attorneys are used in cases was discussed, but the subcommittee took a broader approach that addressed how all attorneys temporarily involved in a case — be they associates at the firm hired by the client or coverage attorneys — can enter and leave cases.
"From a rule perspective, it needs to have a notice to the clerk, to the court, to the litigants, to the parties, of who's in, who's out, and who is making representations on behalf of the parties," Borman said of the amendments.
She said the subcommittee discovered problems that covering attorneys hired other covering attorneys to handle hearings without the client's knowledge, that covering attorneys sometimes took actions that were later disavowed by the attorney who hired them, and that some covering attorneys seemed unaware that they were bound by Bar ethics rules. The subcommittee added a reminder to its rule proposal that all covering and substitute attorneys are bound by all Florida Bar rules.
Borman said a special seminar was held in the 15th Circuit to address coverage attorney issues, including ethical issues.
"If you are representing a bank as a covering attorney and then the next day you are representing a defendant who's being sued by that bank, do you have a conflict of interest?" she asked. "Many attorneys said, 'No, I was just there covering.' But you are an attorney representing that bank. You now have an issue when you come in the next day, or even later that morning and represent a homeowner being sued by that bank.
"Other attorneys didn't seem to know it was an issue when you cover for a covering attorney and the client doesn't know it nor does the first law firm know it."
Paul Regensdorf, another subcommittee member, said the larger issue is determining who is the main attorney responsible for a case and then how they and other attorneys — be they associates at the firm, other co-counsel, or covering attorneys — can make appearances or otherwise get in and out of the case.
Designating the attorney of record lets everyone know who is the "first among equals" or main attorney representing a party, Regensdorf said. "That attorney has to come and go [in the case] pursuant to all the bells and whistles of existing law, and that is you have to give notice to the client; you have to give notice to the court; you have to get a hearing; and you have to get an order. And that's the way it should be.. . there really is no change on that."
He added that, while mentioned in other rules and in some statutes, the attorney of record is not defined anywhere in the procedural rules.
"Then we have everyone else, every other attorney in the case needs to be able to come and go appropriately so long as there is the attorney of record who is always the umbrella who protects the clerk, the client, the court, and everyone else," Regensdorf said. "It [the temporary attorney] could be a 40-year lawyer. . . it could be an associate at my firm who covers one hearing. . . it could be a covering attorney who is from 300 miles away.
"They sometimes don't tell people who they are; they're nowhere in the record; you can't tell who covered a case for a particular firm at a hearing because they leave no footprints in the sand. It's professionally scary as hell," he added.
The solution is to require the lawyer to file a notice when they appear in a case, even if the appearance is filed immediately after a hearing, and then file a second notice when they are finished with that case, giving the date that their involvement with the case ended. That would not, Regensdorf said, require notice to the client or approval by the court, which is how things operate now. The termination notice, in the proposed rule, would designate who continues as the attorney of record for the client.
The reminder that substitute, covering, associates, or other attorneys are covered by Bar rules is necessary, he said, because "if you are an attorney in the state of Florida. . . in any proceeding where you are acting for a client, you are 100 percent bound by the Rules Regulating The Florida Bar. You are professionally responsible to the client; you are professionally responsible to the clerk; you are professionally responsible to the judge; and each of those people should know who you are, and for what period of time you are there."
Bar Board of Governors member Andy Sasso, liaison to the RJA committee, noted the rule didn't take into account a probate rule that allows for limited appearances in some cases, and committee member Ashley Myers said family law rules also allow for limited appearances. Borman said the proposed rules could be modified to accommodate that.
Committee member Mark Romance questioned whether it was workable to allow attorneys to file a notice of appearance when they arrive at court. Allowing the notice to be filed after a hearing could be problematic if lawyers skip filing the notice. He also said that "appearance" needed to be defined in the rule.
Committee member Marynelle Hardee, who works for the Alachua County Clerk of Court and is a member of the Traffic Court Rules Committee, said the traffic rules committee opposed the rule because it required a written instead of oral notice, which would require too much paperwork for traffic attorneys who frequently cover for each other at hearings. Clerks, though, she added, like having the records.
"You have to balance the need of a clear and accurate record against handling more paper," she said.
Miami attorney Rafael Millares, who owns a traffic ticket law firm, said the proposed rule requires too much paperwork for the high volume ticket practice. He noted 4,000 tickets are written daily in Miami-Dade County and added that clients at his firm are told at the outset that covering attorneys may be used in their cases.
Committee member Joel Silvershein, an 17th Circuit assistant state attorney, said the rule might not be workable in criminal cases where assistant state attorneys and public defenders frequently cover for each other. He also said that on collateral appeals in death penalty cases that by statute the attorney general and state attorney are co-counsel on the appeal.
Borman noted that keeping track of which attorneys are appearing is less problematic in criminal courts because there is always a clerk keeping records.
John Broder, who started the My Motion Calendar firm to provide covering attorney services, told the committee said he supported the rule with some tweaks.
"I want to see this become a regulated industry with really good professional standards," he said.
Other committee members said it was unnecessary to say that covering attorneys and others making limited appearances are under Bar rules, since it would be redundant and imply that other sections of procedural rules without that reminder are not under by Bar rules.
Committee member Murray Silverstein questioned the need to have an appearance notice filed when an associate of the leading attorney's firm covers a hearing.
Regensdorf acknowledged the concerns, but said he hadn't heard anything that couldn't be addressed by editing the proposed rule or that overrode his concern for a record to be made when attorneys enter and leave cases. He moved to give the rule conceptual approval. The committee instead approved a motion to refer it back to the subcommittee for more work.
The rule is expected to be discussed again when the committee meets in October.
Source: https://www.floridabar.org/the-florida-bar-news/panel-continues-work-on-temporary-representation-issues/
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