When it comes to managing a law firm, attorneys often find themselves juggling multiple cases and commitments.
In such situations, the assistance of per diem attorneys can be invaluable. A per diem attorney is a legal professional hired on a temporary basis to handle specific tasks or make court appearances on behalf of another attorney or law firm.
Over the years, the scope of a per diem attorney’s role has evolved as well as the benefits they offer in the legal world.
The New York City Bar Committee
The New York City Bar Committee consists of more than 150 committees dedicated to advocating for legal issues by drafting reports on current legislation and shaping policy. These committees actively involve members of the City Bar, who must be appointed to serve on a specific committee.
Drawing upon the expertise of committee members, the City Bar releases reports and formal opinions to provide guidance and support to attorneys facing various legal challenges. These resources aim to assist fellow attorneys in navigating complex issues effectively.
History of Per Diem Attorneys
In March and May of 1988, the New York City Bar Professional Ethics Committee issued Formal Opinions 1988-3 and 1988-3-A, addressing several issues related to temporary lawyering and the agencies that recruit temporary lawyers.
These opinions aimed to improve the delivery of legal services by providing guidelines for the operation of temporary lawyer placement agencies in compliance with the Lawyer's Code of Professional Responsibility.
The Committee recognized the need to enhance opportunities for lawyers seeking part-time employment and established guidelines to ensure the ethical operation of these agencies.
Over the years the per diem scope has evolved as well as the opinion from the professional ethics committee.
Opinion 1113, dated January 10, 2017, is the most updated version of the Committee’s opinions on per diem attorneys in New York State that ZR Per Diem could locate.
Attorneys of record hire per diem attorneys, clients do not. It is common practice that the per diem attorney is not in contact with the client, but rather the hiring attorney for a specific date they are hired for.
It is most common for per diem attorneys to be hired to cover a court appearance that the counsel of record cannot attend.
What is a per diem’s attorney relationship in court?
“Although per diem lawyers are hired by the attorney of record, they represent the client and are being hired to “appear” on behalf of the client. See N.Y. City 1988-3 (the relationship between the temporary lawyer and the client is no different from the traditional lawyer-client relationship).”
For this reason, per diem attorneys are bound by the same professional responsibilities, including attorney-client confidentiality and ethical obligations. They are required to maintain the highest standards of professionalism and integrity while representing their clients.
This ensures that the information shared remains confidential and that clients receive quality legal representation, regardless of the attorney handling their case.
Can a law firm bill the cost of a per diem attorney?
“Rule 1.5(b) enjoins a lawyer to communicate to a client “the basis or rate of the fee and expenses for which the client will be responsible.” If the law firm wishes to bill the client for the cost of the per diem lawyer, the lawyer should communicate this possibility to the client. The issues of whether the hiring lawyer may mark up the cost of a per diem lawyer or charge the cost of a per diem lawyer as an expense in a contingent fee matter are beyond the scope of this opinion. On the other hand, the fee paid to the Service may not be included in the legal fee charged by the law firm to its client. Rather, if the law firm wishes to pass it on to the client, it must separately bill it as a disbursement. See N.Y. City 1989-2.”
If a law firm intends to pass on the cost of a per diem attorney to the client, it should be clearly communicated in advance.
It is a common practice to see law firms include in their retainer agreements under expenses to be deducted the cost of per diem services.
The Opinion states:
“The issues of whether the hiring lawyer may mark up the cost of a per diem lawyer or charge the cost of a per diem lawyer as an expense in a contingent fee matter are beyond the scope of this opinion.”
However, they do state a law firm should they wish to pass on the expense may bill the use of per diem separately as a disbursement.
What is a per diem's value to a law firm?
Per diem attorneys play a vital role in the legal profession, providing much-needed support and expertise to primary attorneys and law firms. By leveraging the skills and flexibility of per diem attorneys, law firms can optimize their operations, manage caseloads efficiently, and deliver quality legal services to their clients.
