When a client retains counsel, he expects that person to be standing next to him in court. It’s not an unreasonable expectation. Yet Eric Turkewitz posts about the problems that can happen when the lawyer who shows up in court is someone a client has never seen before.
The case Turk discusses is a civil case, Kane v. City of New York, though the gravamen of the action involved injuries suffered in a false arrest at the hands of the New York City Police Department, and there was an issue relating to asking questions at the deposition about the plaintiff’s prior arrests. While convictions are fair game, arrests are generally off the table, as they are mere unproven accusations. But the lawyer on the case couldn’t make the court appearance one day.
Then came the problem. The lawyer had a conflict and hired a per diem to handle the next conference. The lawyer, knowing the sensitivity of the case, gave directions to the per diem. But the per diem dropped the ball. S/he then gave the case to another lawyer because s/he was too busy with other conferences that day. The specific directions regarding this case got lost in translation. The new order was not good for the plaintiff.Too busy. This comes as a shock to the client, who may intellectually understand that they aren’t the only client represented by the lawyer, but still believes that they are the lawyer’s primary concern. And they should. It’s not a client’s job to concern themselves with the lawyer’s calendar. Every client is entitled to believe they are the lawyer’s only client, or at least the lawyer’s most important client.
The reality for lawyers is that they aren’t entirely in control of their lives. Judges adjourn cases to dates of their convenience, and conflicts happen regularly. Most of the time, it’s just a matter of timing, moving from one room to another, one building to another, so that every case is covered properly. One case may be heard at 9:30 a.m. while another gets pushed back to 11:00 a.m., but that’s about the worst of it.
However, the busier a lawyer is, or the poorer he is at coordinating his schedule, the more likely it becomes that he can’t handle his obligations properly. For lawyers who work beyond a limited geographical area, they are constrained by the laws of physics and can’t magically transport between courtrooms hundreds of miles away.
Then there is trial. When a lawyer is on trial, there is nothing else that comes before it. No court appearance, no matter how critical to the client, takes a lawyer away from trial. Few clients have difficulty appreciating this, as they want the same for themselves when they go to trial. Similarly, most judges give greater latitude to lawyers on trial, who at worst are forced to submit affirmations of actual engagement to explain why they can’t be present that day.
High volume lawyers, the guys who have a trial a day, a couple of appeals the same morning, run for courtroom to courtroom, courthouse to courthouse, have a problem. For these lawyers, the inability to stand next to a client is a fixture of their practice. Indeed, the inability to pay any attention to their cases is the norm, as one can’t be in two places at the same time, no less ten. Preceding every trial are numerous appearances in court, and if they can’t be everywhere. Nor can they do the hundreds, or at least tens, of hours of office work necessary to be prepared.
The client who retains a high volume lawyer never knows who will be standing next to him in court, and whether their “lawyer” knows anything about them or their case. They get a fill-in, whether it’s someone on staff or a per diem lawyer, a lawyer paid a pittance to show up and be the warm body before the court. They may wear a suit and tie, look like a lawyer, be capable of generally using lawyer-like words, but be nothing more than a place-holder.
Much of the time, the stand-in isn’t expected to do much of anything. The problem in Turk’s example is that the message given to the first per diem got lost before reaching the second. So the client retained counsel who adequately instructed the person he thought would be present, who failed to adequately instruct the lawyer who ultimately appeared, who sold the client down the river. It doesn’t take two warm bodies to give rise to a disaster.
There is a reason why a criminal case comes before the court is somewhat regular intervals, whether because the judge wants to make sure the defendant hasn’t decided to take an extended vacation in the Maldives or because there is real work to be done. Either way, every appearance matters. The defense never knows what will happen, whether a plea offer is made, or a significant bit of information conveyed that, to the attuned ear, can be used to turn a loser into a winner. If nothing else, it often gives the prosecution the opportunity to announce “ready for trial” when they aren’t because they know the stand-in isn’t going to try the case, thus stopping the speedy trial clock to the defendant’s prejudice.
No court appearance is a throw-away. Every court appearance matters. Every single one.
It’s one thing when a lawyer is on trial, making it impossible for him to be present in court to stand beside another client. It happens. And then there are the rare emergencies, such as a call from a judge to be present the next day for a critical event. It happens.
But if this is the routine, that the client finds himself standing beside a lawyer he doesn’t know regularly, or worse still (and this happens), a person who isn’t even a lawyer, there’s an inexcusable failure of representation. Most lawyers have a few lawyers in whom they repose trust, and with whom they will cover emergencies when they can’t be avoided. These are solid lawyers, the sort who are strong enough to have been retained in the first place, and who the retained lawyer can be certain will handle the matter with diligence and care. But when it goes a step beyond, or when it becomes so routine that trust and competence is replaced with nothing more than availability, the client’s interest is lost.
The lawyer may want the case, need the money. But if you can’t handle logistically handle what you take in, you are every bit as incompetent and unethical as the lawyer who tries to dabble in fields he knows nothing about. It’s not about you claiming your stake in whatever cash the client has in his pocket, but providing the representation you’ve obligated yourself to provide.
If you aren’t there, you can’t do it. Sending in warm bodies to cover the inconvenient appearance isn’t good enough. Your client is angry with you, and he is right to be. You make excuses, but you’re full of it. You took on the case and you are responsible for handling it properly. You’re too busy is never an acceptable excuse.