Amendments address 'coverage attorneys' proposals expand unbundled services.
The board ratified recommendations that came from the Rules of Judicial Administration, the Criminal Procedure Rules, and Appellate Court Rules committees. The board acted at its December meeting in Naples.
RJA Committee Chair Amy Borman said the issue began when her committee looked at how attorneys entered and left cases and how attorneys arranged for others to cover for them when they couldn't be in court. That could range, she said, from having an associate in the firm attend the hearing or court session to arranging for an outside "coverage" attorney to be in court.
Problems arose because there was often no written court record of which attorney was at a proceeding. Further, Rule of Judicial Administration 2.505 only mentions three ways of getting into a case, Borman said: File a document in the case, get an order of substitution, or file a notice of appearance.
"That's it. There is no walking into court and saying, 'Hi Judge, I'm here on behalf of [another attorney's] client.' The practice is we all do it [by sending other firm members or associates to cover a hearing]," Borman said. "They're actually violating the rule. Coverage attorneys violate the rule. Nobody seems to know this rule exists and nobody is following it."
The use of substitute or coverage attorneys is particularly acute in traffic, foreclosure, and county civil court cases, she said. In traffic court, a clerk notes the name of appearing attorneys, but there generally aren't clerks in foreclosure and county civil courts, and there's frequently no record of which attorneys appeared.
"It's important for judges to know who is appearing before them," she said.
After three years of discussion, the RJAC decided to greatly amend the rule, Borman said. One concern was, as courts switch from paper-based operations to electronic records, how to keep track of who is involved in a case and who should be served with court documents. Another spur, she said, was the Vision 2016 Access Subgroup approached the committee about allowing unbundled or limited representation by attorneys in a wide array of cases. Procedural rules already allow attorneys to represent pro se clients for specific tasks in probate and family law cases.
The problem was exacerbated by a lack of definition of what a lead attorney is or even what an appearance is.
So in the rule amendments, Borman said, the committee defined that there are lead counsel, additional counsel, and limited representation counsel. The lead attorney is the attorney of record, she said, and additional counsel are everyone who appears in the case, whether as associate of the lead attorney or a coverage counsel. The lead attorney can only leave a case with a judge's order and with the client's consent, she said, while associate attorneys, including coverage attorneys, can file notices when or after they appear. Those associate and coverage attorneys can ask a judge for permission to waive the notices, but it requires judicial approval to bypass the requirement.
Limited counsels are those who are hired to perform a particular duty or function of the client, Borman said. The rules allow them to leave a case when their defined function is over and a judge cannot order them to remain with a case, she said.
The changes also make it easier to maintain the service lists for cases.
The RJA Committee recognized that the rules might not fit all practice areas and invited other procedural rule committees to draft their own amendments as needed, Borman said. Both the Criminal Procedure and Appellate Court rules committees made their own modifications to fit their specific needs.
The amendments also clarify the duties and responsibilities of non-lead attorneys, which have been murky to some attorneys, she said.
"We put into language that the duty is to the client; you still have an attorney-client relationship in that you are a legal counsel even if you are limited counsel or coverage counsel," Borman said. "There's a disconnect because people are not being taught ... that you owe the ethical duty to the client, not the attorney who hired you."
She said there was one case where the coverage attorney refused to talk to the client, believing he was responsible to the attorney who had arranged for him to cover the proceeding.
Board member Bill Davis asked Borman how the limited appearance rule would apply in contingency fee cases, when an attorney might be hired to handle a case through mediation and then the client would be left on his or her own.
"This automatic withdrawal without supervision should not apply to contingency fee cases," he said.
The board rejected his motion to amend its recommendation on the rule to reflect that sentiment.
The board then unanimously approved the rule amendments with the modifications for the criminal and appellate rules.
By Gary Blankenship