Special Appearances Can Be a Special Outsourcing Worry

Reprinted from:
Published 4/06

Many firms, both large and small, hire contract lawyers to provide legal counsel on matters for which the outsourcing lawyer is unavailable to handle. In a contract lawyer situation the outsourcing attorney should contribute oversight of the outsourced legal work and usually is the one to communicate with the client.

There can be a real problem with such an arrangement when a contract attorney makes a special court appearance on behalf of another lawyer. 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. The lawyer who engages the contract "pinch hitter" obviously becomes responsible - in a malpractice sense - for any errors committed even in a seemingly simple case.

However, consider the reverse, where 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. In the 2000 case of Streit vs. Covington & Crowe, the California Court of Appeals upheld a plaintiff's right to include the Covington & Crowe firm in a malpractice action against her own attorney. The court found an implied attorney-client relationship, even though the Covington firm's only contact with the plaintiff was an appearance made as a professional courtesy at a hearing on a summary judgment motion.

In 2003 California attempted to address this issue by creating a new "Notice of Limited Scope Representation" form that clearly delineates the purpose and duration of the special appearance and must be signed by the client who acknowledges the limitation of the special appearance. However, notice of the special appearance must be filed with all parties of record, and any of them can file an objection with the court, which must then rule on the acceptability of the special appearance. Sounds like a lot of work to do just for a favor to 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!

A second pitfall created by special appearances is the issue of fees. When firms outsource for a special appearance, they are not required to bill the client at their cost for the contract attorney's time. In fact, Model Rule 1.5 holds that fee-splitting is acceptable if both lawyers involved contribute something of value, if the client agrees in writing, and if the total fee is reasonable. However, it's vital that the attorneys involved have their own fee arrangement in writing. Courts from California to Michigan have ruled that split fees cannot be collected in full without complete documentation from either the client or the attorney side.

Attorneys who don't get written confirmation when they have accepted the outsourcing of a special appearance are like the cobblers' children who go without shoes. They obviously have failed to take care of themselves if their only recourse to secure an undocumented special appearance fee is to sue. And when there's money involved, even lawyers can have selective memories.

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