A recent instance of counsel appearing on a case made the news in New Jersey. John Gelman picked up on this in his writing. I am not sure whether his is a blog or an "other," but he brings an interesting perspective. He is one of the few workers' compensation academics in the country, and our club is seemingly shrinking rather than growing.
In the New Jersey instance, a law firm noticed an appearance on behalf of the employer and PEO. Within days, contractual disputes arose between those entities, and the law firm attempted to file a new appearance solely on behalf of the PEO.
The employer moved to disqualify counsel, who had never spoken with the employer, shared information, or otherwise had opportunities to exchange confidences. The law firm declined to withdraw its representation of the PEO, and the matter made its way to the appellate court.
It illustrates and illuminates a challenge that we experience from time to time in Florida. Lawyers file notices of appearance, becoming counsel of record. They ignore the requirements for withdrawal or substitution, and they remain counsel of record. The Florida rules are elementary and fundamental:
If you file a petition or a Notice of Appearance, you are "the party's attorney of record." Rule 60Q6.104(1). What if it is a Thursday? same answer. What if I am taller than average? same answer. What if I had tuna for lunch? same answer. What if I did not mean to? same answer.
The point is reasonably clear here. Not a lot of analysis. Not a bunch of construction or "what if" arguments. Anyone who struggles with this, please email me for questions (make sure you copy your opposing counsel or parties).
Ok, so when does someone stop being counsel of record? Well, if there is a stipulation for substitution (Rule 60Q-6.104(2)(a)) or a "motion to substitute or withdraw" (Rule 60Q-6.104(2)(b) that results in an order, then they are no longer counsel. See above for example variables that will not change the answer (tuna for lunch).
But what if I leave my current firm? You are still counsel of record. What if I change my name? You are still counsel of record. What if I file a new Notice of Appearance and alter the party(ies) I list, a different composite than the first notice? Well, you just added clients, but also still represent each for whom you have entered an appearance.
Pretty simple, actually.
Need to stop representing someone? Enter a substitution stipulation with their new counsel and file it. OR file a motion to substitute or withdraw. Until something removes you, you are counsel of record. And that may entail much, including service, due process, and even your ethical obligations.
Law firms do not represent parties. See Who Represents this Party? (November 2014). It is clear under the 60Q rules and under a variety of appellate decisions (if you believe in stare decisis) that lawyers represent parties.
Thus, filing a notice of appearance is the lawyer's acknowledgment of their own responsibility and connection. Regardless of what the notice says, the law firm of X&Z is not counsel under the 62Q rules. The lawyer at X&Z is counsel of record (she still is if she takes a new job at W&P, or Q&U). The counsel is the lawyer. Want to change that? See above. This is all somewhat Newtonian. A counsel of record will stay counsel of record until acted upon by a valid substitution or motion/order.
And New Jersey reminds us that appearance may create ethical and professional responsibilities. Counsel can accept service for a party, can speak for a party, and can even resolve issues for a party. The counsel represents, is an agent for, the party. Think jurisdictionally; an attorney appearing in a case for a party may well submit that party to the jurisdiction of the tribunal, meaning to or not.
In New Jersey, the employer's objection to that original attorney proceeding on behalf of the PEO was a conflict of interest. Despite the attorney's protestations that he never really represented the employer, the court concluded that RPC 1.9(a) compelled the result. Filing a document that purported to represent the employer was representation, "full stop." It cannot be that simple? Well, the court said not only can it be, but it was.
The court clarified, for those who might want to imply some grey area:
“We decline to engraft a ‘no harm-no foul’ standard onto the Rules of Professional Conduct, particularly where, as here, a duty to a client is implicated.”
Simple, Newtonian litigation. Once you say you are counsel, you are counsel. There is no quibble, and you may find yourself with ethical responsibilities as a result of your professional actions. The notice of appearance is perhaps among the simplest pleadings a lawyer will ever file. Why not take a minute and make sure it is right anyway? And why not share this story with your staff so they can remind you from time to time? That might save a call to the E&O carrier, or at a minimum, embarrassment.
