Ethical Considerations When “Specially Appearing” for Another Lawyer
If you are a litigator, you have likely been in court and heard another lawyer enter her appearance by stating her name, followed by the phrase “specially appearing.” Or, perhaps you have received a telephone call from another lawyer who requests you “specially appear” at a hearing for a client you have never met. Such appearances are not uncommon in California Superior Court in both civil and criminal matters.
Before you agree to “specially appear,” which means entering an appearance at the request and in the place of the attorney of record [i], whether as a favor for a colleague or in exchange for financial compensation, be mindful of the various ethical considerations that attend a special appearance in order to effectively protect the client, your professional reputation, and avoid a disciplinary complaint. Below are just a few of these considerations.
A lawyer who makes a special appearance is associated with the attorney of record and has an attorney-client relationship with the attorney of record’s client.
In Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 445–446, the California Court of Appeal found that a lawyer making a one-time “special appearance” is associated with the attorney of record. The Streit court observed that “[i]n the case of a one-time appearance, the duties assigned to the associated counsel are limited in time and scope. But whatever the allocation between them, both attorneys have an attorney-client relationship with the litigant they represent until that association is terminated.” (Id. at 446.) (emphasis added.)
Later, in Blue Water Sunset, LLC vs. Markowitz, (2011) 192 Cal.App.4th 477, 487–488, the Court of Appeal, relying on the holding in Streit, found that an attorney who prepared a demurrer and made a special appearance, not only had an attorney-client relationship with the litigants he represented, but also owed them a fiduciary duty, including a duty of utmost loyalty. The Court of Appeal made clear it would have ruled no differently if the attorney had only made an appearance.
Similarly, the California State Bar Standing Committee on Professional Conduct[ii] has opined a contract attorney hired by another lawyer to appear in her place at a hearing or other matter is subject to an attorney-client relationship. By making an appearance for the hiring lawyer, the contract lawyer “steps into the shoes” of the hiring lawyer to provide legal services to the client. By doing so, the contract lawyer “undertakes the ethical duties that arise from an attorney-client relationship.” (See Cal. State Bar Opn. No. 2004-165.) A few of these ethical duties are listed below.
Duty to Avoid Conflicts of Interests
A lawyer is responsible for determining and ensuring there are no conflicts of interests as outlined by the Rules of Professional Conduct, including California Rule 1.7 (Conflicts of Interest: Current Client) and Rule 1.9 (Duties to Former Clients). To facilitate the identification of any conflicts, a lawyer should do a conflicts check before any special appearance. Although the Rules of Professional Conduct do not expressly refer to a conflicts check system, Comment [1] to Rule 5.1 “requires lawyers with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures designed, for example, to detect and resolve conflicts of interest . . .”
Duty of Confidentiality
California Rule 1.6, subject to certain exceptions [iii], requires a lawyer to “not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent iv …” (Cal. Prof. Rule of Conduct, Rule 1.6(a).)
Business and Professions Code section 6068 requires a lawyer “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (Bus. & Prof. Code § 6068, subd. (e)(1).) “Client secrets means any information obtained by the lawyer during the professional relationship or relating to the representation which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client.” (Cal. State Bar Formal Opn. No. 2016-195; internal citations omitted.)
Absent a client’s informed consent, a lawyer making a special appearance is subject to the same duty to keep confidential all information learned about the client during the professional relationship.
Duty to Communicate Regarding a Client’s Objectives
California Rule 1.4 imposes various duties regarding communication with clients, including a duty to reasonably communicate “about the means by which to accomplish the client’s objectives in the representation.” (Cal. Prof. Rule of Conduct, Rule 1.4(a)(2).)
A lawyer making a special appearance should reasonably communicate about the client’s objectives prior to the hearing. Time constraints may impact the ability to do so directly with the client, but a specially appearing lawyer’s duty to communicate with a client and the attorney of record (preferably in writing) is not excused by circumstances, in particular if the attorney-client relationship will continue beyond the special appearance.
Duty to Communicate Settlement Offers
California Rule 1.4.1 imposes a duty to promptly communicate to the client [iv] “all terms and conditions of a proposed plea bargain or other dispositive offer made to the client in a criminal matter …” (Cal. Prof. Rule of Conduct, Rule 1.4.1(a)(1).) Additionally, a lawyer has a duty to communicate “all amounts, terms, and conditions of any written offer of settlement made to the client …” Moreover, this rule imposes a duty to communicate an “oral offer of settlement” if it is a “significant development under Rule 1.4.” (Comment to Cal. Prof. Rule of Conduct, Rule 1.4.1.)
A lawyer making a special appearance is required to promptly convey settlement offers to the client. For example, consider a scenario where a lawyer specially appears at a civil ex parte hearing for an order to continue the trial date. At the hearing, opposing counsel relays a verbal settlement offer. The lawyer making the “special appearance” must communicate the offer to the client if it constitutes a “significant development” under Rule 1.4. Whether a development is significant will generally depend upon the “surrounding facts and circumstances.” (Comment [1] to Cal. Prof. Rule of Conduct, Rule 1.4.)
In summary, when a lawyer makes a special appearance on behalf of another lawyer, it creates an association with the attorney of record that establishes an attorney-client relationship. A specially appearing lawyer may owe various ethical duties to a client she has never met. These duties exist to protect the client. In light of these obligations, a lawyer may decide the prudent course is to protect her bar card and avoid making special appearances.
[i] See Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, 444, fn. 2 (Explaining the term “special appearance” as technically meaning “an appearance for the limited purpose of challenging an assertion of personal jurisdiction over a party.” And defining the term’s more common usage as “denot[ing] an appearance at a hearing by one attorney at the request and in the place of the attorney of record, whether with or without compensation.”)
[ii] In California, ethics committee opinions may be consulted by members for guidance on proper professional conduct. Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered. (California Rules of Professional Conduct rule 1.0, Comment [4].)
[iii] Rule 1.6(b) identifies the exceptions and provides: “[a] lawyer may, but is not required to reveal information protected by Business and Professions Code section 6068, subdivision (e)(1) to the extent that the lawyer reasonably believes the disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death of, or substantial bodily harm to, an individual, as provided in paragraph (c).” (Cal. Prof. Rule of Conduct, Rule 1.6(b).)
[iv] “Client” is defined as a “person who possesses the authority to accept an offer of settlement or plea, or, in a class action, all the named representatives of the class.” (Cal. Prof. Rule of Conduct, Rule 1.4.1(b).)
iv “Informed consent” is defined as “a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.” (Cal. Prof. Rule of Conduct, Rule 1.0.1.)