Per Diem Attorneys and the Rules

Lawyers and law firms need the help of per diem attorneys for a variety of reasons. Some cases have unavoidable scheduling conflicts; others require counsel to appear in distant courts for routine, non-substantive calendar calls. In other instances, lawyers and law firms simply cannot afford to staff an associate for every appearance they must make.

In these situations, a New York Per Diem Attorneys can save the day. In exchange for a fee, the per diem lawyer agrees to pick up a case file (or relevant portions of it), travel to a court and appear in court on behalf of the firm. The lawyer may never hear about the matter again – if the attorney of record doesn’t request her to handle subsequent court appearances, for example, or do any further work on the matter.

This is a typical arrangement with a per diem attorney; it’s how many New York lawyers work. However, a recent decision by Supreme Court Justice Charles Ramos sends shivers down the spine of contract lawyers throughout New York State.

Justice Ramos was addressing the issue of whether a lawyer is responsible for a missed conference when she hires a per diem to cover an appearance. In the case, a plaintiff’s lawyer hired a per diem attorney to attend a court conference on her behalf because she had scheduling conflicts. The per diem attorney agreed to handle two matters that morning and traveled to the courthouse. The per diem attorney was unable to participate in the conference due to an earlier meeting, but with the opposing party’s consent he was able to reschedule the proceeding for five days later.

The lawyer of record then sent a letter to the court informing it that she had hired the per diem attorney to represent her, but that she would not be attending the proceeding because she was on vacation. The court imposed sanctions, pursuant to 22 NYCRR SS130-1.2, on both the per diem attorney and the attorney of record. In more serious instances, the lawyer of record and the per diem attorney could face professional discipline.

While the Rules treat per diems and associates differently in some respects, for instance, the hiring lawyer must obtain client consent to use a per diem where the matter requires significant sharing of client confidences or substantive work, an arrangement is not necessary for a per diem if the firm reasonably expects the matter to be routine or non-substantive. In any event, the per diem attorney’s fee, after mark-up, must be reasonable.

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