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Per Diem Attorneys and New York Lawsuits

A per diem attorney is a freelance lawyer hired by law firms to handle specific tasks on a short-term basis. Often, such lawyers are needed to cover court appearances and depositions. per diem attorneys can be a great help for law firms that are overwhelmed or understaffed and cannot afford to maintain full-time in-house counsel for this purpose. However, the use of per diems can present ethical problems.

For instance, a recent decision by New York Supreme Court Justice Charles Ramos may have a chilling effect on the use of freelance per diem attorneys in the state’s courts. The judge ruled that when lawyers hire freelance per diems to handle a hearing, deposition or other legal matter, they must provide the same level of client service as they would for their own firm’s attorneys. The judge also ruled that if the per diem lawyer misses or arrives late for a scheduled hearing, the hiring lawyer must sanction the lawyer for failing to appear at the time and place set for the hearing.

This ruling has sparked controversy among some New York lawyers, who are now questioning whether it is ethical for them to use hourly per diem attorneys to cover court hearings and other legal matters. Many attorneys say that if they are able to obtain the services of per diem attorneys with specialized expertise, they can be a valuable asset to their practice and increase efficiency by freeing up time for other work. Per diem attorneys can also help lawyers with difficult cases by handling complicated issues and providing insight and knowledge that is outside of their primary area of expertise.

In this case, plaintiffs’ attorney Peter van Schaick hired two hourly per diem lawyers to attend a labor and employment case he had in the New York State Division of Civil Rights. The per diems charged him $60 an hour, which is significantly lower than their market rates of $250 to $275 an hour. Nevertheless, the judge awarded him $316,637 in fees and costs.

The underlying issue here is that the use of per diem lawyers to cover court appearances and depositions is considered by many New York lawyers to be “of counsel” work. As such, the hiring attorney must provide client consent to this arrangement and must disclose certain information about the case to the per diem, including a copy of the complaint, the status report and any other documents pertaining to the matter. In addition, the hiring lawyer must comply with Rule 1.5(g), which requires that any appearance lawyer be deemed to be of counsel only when the hiring attorney maintains complete control and sole responsibility for a matter, and where the appearance lawyer is expected to engage in substantive or strategically significant legal work or share confidential client information.

To avoid the pitfalls of violating Rule 1.5(g), some lawyers are considering avoiding the appearance lawyer designation and simply listing them as “of counsel” in their legal directories. While this solution can eliminate some of the ethical concerns, it still leaves other concerns.