Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

In For A Penny, In For A Pound  

We’ve all been in a courtroom and seen or heard it — ex parte hearings; status conferences; calendar calls; requests for continuances; even arguments on motions and bankruptcy proceedings. Lawyers “appearing specially” for Mr. or Ms. “Lawyer of Record.” Google the term. You’ll find websites advertising the services of “appearance counsel,” willing to step into your shoes in any courtroom for a modest fee — “cheaper than Courtcall,” touts one ad.

How often, however, do lawyers making these “special appearances” consider the professional responsibility and risk mitigation aspects of showing up and just announcing their name? Likely, not often. Some cases suggest that, perhaps, they should think about it a bit more.

One case in point. As a professional courtesy, lawyers from one firm “specially appeared” for a client’s lawyers of record at a summary judgment hearing. The client became unhappy with the result and eventually sued both the lawyers of record and the specially appearing lawyers for professional negligence. The specially appearing lawyers contended they had not given the client any substantive legal advice — and likely had not. A trial court thought that good enough and decided no attorney-client relationship existed.

The court of appeal, however, reversed. It held that the special appearance was enough to create an attorney-client relationship even with an unseen, never-met client; moreover, the specially appearing attorneys owed that client all the duties every lawyer owes any client — the duty of loyalty; the duty of due care; the duty of confidentiality; the duty of communication; the duty of a conflict-free representation, among all the others laid out in the Rules of Professional Conduct, the State Bar Act and the authorities interpreting them.1 The court also made clear that a “special appearance” has a defined purpose: a challenge to the court’s jurisdiction,2 notwithstanding how many lawyers cavalierly use the term when making a routine appearance on behalf of another lawyer.

As the concurring opinion said:

I believe that our system of legal representations is better served by a bright-line rule: when an attorney stands before the court and announces ready for Jones, the world can count on it — that attorney represents Jones, and that attorney will be held responsible if he or she commits malpractice or violates rules of professional conduct.3

In short, a quick appearance for a modest fee — “cheaper than Courtcall” — could create the risk of having to defend a professional negligence claim later, or face a State Bar complaint that one’s conduct warrants discipline.

“But,” rejoins specially appearing lawyer, “not every routine special appearance risks a malpractice claim, or discipline. Some are perfunctory.” Likely true. But there may be other considerations.  

In a more recent case, a lawyer for one party, again merely as an accommodation, specially appeared for a colleague at a demurrer. That appearance, however, created an attorney-client relationship with the colleague’s client and a resulting concurrent conflict of interest because of the lawyer’s representation of another party.

The result? Automatic disqualification from the case.4 The appellate court held that Rule of Professional Conduct 3-310(C) (avoiding conflicting representations) applied and that a concurrent conflict mandated disqualification.5 Thus, not only was the specially appearing lawyer out of the case because of gratuitously stepping in for someone else, but his client had the burden of engaging new counsel and getting the new lawyer up to speed. At whose cost? We can only imagine that conversation — not one most of us would want to have.

Since a special appearance creates an attorney-client relationship sufficient to trigger a conflict of interest and disqualification in the same case, could such a special appearance adversely affect the specially appearing lawyer’s representation of his or her other clients? Or the lawyer’s ability to accept new representations? The same conflict-of-interest analysis would apply even if the matters are different. Rule 3-310(C)(3) prohibits representation of clients with adverse interests in separate matters without each client’s informed written consent.

“But,” says specially appearing lawyer, “that appearance was long ago. I couldn’t possibly be thought to represent that client now.” Fair enough. But even if the first representation is long concluded, successive representation of clients with conflicting interests in matters that are substantially related triggers the same disqualification result.6 In short, a quick appearance for a modest fee — “cheaper than Courtcall” — could bar subsequent work for good clients.

Finally, lending one’s name to an ongoing lawsuit can mean having to accept responsibility for the claims the other lawyer made and the way the other lawyer conducted the case — and to answer for a subsequent malicious prosecution claim.7

-- Edward McIntyre

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**

1 Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 445-446.
2 Id. at p. 451, fn. 1 (concurring opinion).
3 Id. at p. 450 (concurring opinion).
4 Blue Water Sunset, LLC v. Markowitz (2011) 192 Cal.App.4th 477, 489-490.
5 See Flatt v. Superior Court (1994) 9 Cal.4th 275, 288.
6 Id. at p. 283.
7 Cole v. Patricia A. Meyer & Associates (2012) 206 Cal.App.4th 1095, 1116.