October 2000
by Edward Poll, J.D., M.B.A., CMC
Baseball season may soon be over, but the law's version of a pinch hitter -- the contract or special appearance attorney -- may be facing a strike out. A California appellate court has made what I believe is a rational, but far-reaching decision. While this opinion is currently limited to California and may well go further on appeal, other states may follow the logic of this opinion. Listen up!
Many attorneys have chosen alternative lifestyles and are able to support themselves by being what is called "contract attorneys." Contract attorneys perform legal services at a wholesale or discounted price for other attorneys who then bill their clients at a retail or normal fee. These legal pinch hitters also make special appearances on behalf of other lawyers. This generally occurs in smaller communities, but it need not. Quite a few attorneys in major metropolitan areas routinely make appearances for other lawyers who have a conflict with more than one simultaneous court appearance. Attorneys will also pay a legal stand-in to attend a routine court hearing that doesn't require special knowledge of the facts so they can work on other matters requiring greater sophistication or perceived client importance.
A new ruling now brings this practice of legal pinch-hitting into question. In Streit vs. Covington & Crowe, 2000 Daily Journal D.A.R. 8073, the California Court of Appeals has held that an associated attorney and an attorney of record share the duty of representation of the client, that both are in an attorney-client relationship, and that the associated attorney cannot escape liability by claiming he made a "special appearance" only.
Yvonne Streit, the plaintiff, sued attorney Diggs for malpractice. She later served as a Doe defendant in the malpractice action against the firm of Covington & Crowe, whose only contact with the plaintiff and the underlying action was making an appearance at a hearing on a motion for summary judgment as a professional courtesy to Diggs. Covington & Crowe argued that it had made a "special appearance" only, and that it had no relationship with the plaintiff or a duty of care to the plaintiff.
The Appellate Court disagreed. The Court said that an attorney-client relationship can be created by implication; just like a partner of an attorney, an attorney who is associated shares the duty of care to a client. Without this association, the second attorney could not appear in court on behalf of the client, and the division of effort by the attorneys is a distinction in degree, not a distinction in kind. The Court said further that it is not relevant who selected the second attorney or whether the second attorney performed his/her service as a courtesy or for compensation.
While it is clear in the Court's opinion that the two attorneys both owe a duty of care, the precise scope of the duty will need to be resolved by the Trial Court. The case was remanded.
The net effect of this opinion is unknown; we must wait to see how the Trial Court rules and, then, whether that decision will be appealed. However, the Appellate Court certainly has caused or should cause all attorneys to be more careful and less cavalier about agreeing to make an appearance in court on behalf of another attorney. Not every appearance will result in malpractice, but every such claim now does carry a liability with it. The attorney who is making the appearance should reevaluate his/her malpractice insurance coverage. And, if you're the attorney with the time constraint, you may echo the words of one colleague who said: "It's not a pretty picture; I guess we can forget about vacations."
