New York Bar Rules and Per Diem Attorneys

Per diem attorneys are temporary lawyers hired on a per-day basis to handle specific legal tasks, court appearances or hearings. Law firms can use them to fill in for absent colleagues, manage heavy caseloads or tackle cases in unfamiliar jurisdictions. The service is a valuable tool that allows firms to provide clients with consistent representation and reduce costs. For lawyers, it offers convenience, flexibility and peace of mind.

However, the New York bar rules pose significant ethical issues when it comes to hiring per diem attorneys. In particular, the rules require that a lawyer must obtain client consent before hiring an outside attorney and disclose to the client the amount of any fee that will be charged. Moreover, the Rules prohibit a lawyer from charging an excessive fee see Rule 1.5a.

In an arrangement arranged by the Service here, participating per diem lawyers offer their rates, availability and areas of practice to the Service. When a hiring lawyer submits a request, the Service sends the lawyer a list of per diem lawyers available to act on that matter and the rate for each. The lawyer may choose to hire a per diem lawyer from the list and the Service provides the per diem lawyer with a signed letter of engagement. Once the court appearance is complete, the per diem lawyer typically never hears from the case again unless the hiring lawyer requests additional work on the matter or attends another hearing on the same issue.

Assuming the per diem lawyer complies with these ethical requirements, there are several considerations that arise when a per diem attorney is hired to cover a court appearance. The most important issue is the potential for a conflict of interest. The per diem lawyer is representing the firm’s client and must comply with the conflict of interest rules set forth in Rules 1.7, 1.8 and 1.9. Vicarious disqualification also applies. In addition, if the hiring lawyer knows that the per diem attorney is currently representing a client against whom the firm’s client has an unfavorable claim, the firm must take reasonable steps to resolve the conflict.

In addition to the conflict of interest issues, the per diem lawyer owes duties to the court. In this regard, the per diem lawyer must comply with all of the rules and regulations that apply to appearing in a particular tribunal, including local customs and practice and any special disciplinary requirements. If the per diem lawyer violates any of these rules, both the firm and the individual per diem attorney could be sanctioned. In severe instances, one or both could be suspended for a period of time. For these reasons, New York courts have consistently imposed sanctions on lawyers who miss scheduled court appearances or are late for court proceedings. Those sanctions include civil fines and possible disciplinary action. In short, a missed or late appearance by the per diem lawyer can be very costly. For these reasons, it is crucial to consider the appropriateness of using a per diem attorney in every circumstance before making a decision.