Legion Post 248

West Tampa Memorial American Legion Post 248

Ethics and Fee Disclosure Concerns When Hiring a Per Diem Attorney

A per diem attorney is a lawyer who is hired for one day to perform a specific task or case on a short-term basis. They are often used for legal research, drafting documents, or court appearances. They can also be helpful for law firms that have a high volume of cases and need extra support, or for solo practitioners who need to handle a hearing or trial.

The per diem attorney industry has grown in recent years due to a shortage of full-time attorneys, the increased use of technology, and changing client expectations. These attorneys are a valuable resource for law firms because they can provide the necessary legal expertise in an efficient and cost-effective manner. However, there are several issues that arise when hiring a per diem attorney, such as ethical concerns and fee disclosures.

In George Constant, Inc. v. Berman, (NYLJ 12/4/03), the plaintiff’s attorney retained a per diem lawyer to appear at an initial conference in a personal injury action. Because the attorney of record was in another court that morning, the per diem lawyer arrived late to the conference. Justice Ramos rescheduled the preliminary conference for five days later. However, on the rescheduled date, neither the plaintiff’s counsel nor the per diem lawyer appeared.

Justice Ramos imposed a sanction on the per diem attorneys ny attorney for his failure to attend the court conference and for missing the adjourned date. The judge noted that the attorney of record had been responsible for scheduling the conference, but that the per diem lawyer was responsible for appearing in court as scheduled. The per diem lawyer argued that he could not be held liable for failing to show up because he had only been retained for the one-day assignment.

As a result of this case, it is important for lawyers and law firms to document any assignments made to per diem attorneys. It is also crucial to keep in mind that a per diem attorney should never be treated as an associate in terms of ethical duties. Although a firm may charge its clients a mark-up on the hourly rate of a per diem, that mark-up is not an ethical violation in and of itself. In addition, ABA Ethics Opinions 2000-420 and 88-356 suggest that the Hiring Firm must disclose the mark-up for an associate.

However, it is possible to avoid the ethical issue by carefully drafting an agreement with the per diem lawyer in which the Hiring Firm retains the “control and responsibility for the matter.” Moreover, a firm should only assign work to a per diem attorney when that per diem is an experienced and licensed attorney. The current version of ABA Rule 1.5 does not require that the Hiring Firm disclose the mark-up for a per diem if that per diem is an experienced and licensed associate. Nevertheless, this should be reconsidered to make it clear that a per diem is not an associate in the eyes of the Rules.