When an Attorney Can Appear in Court for You
Legal representation is a powerful tool that helps individuals navigate the often murky waters of the law. But what exactly does legal representation mean, and how does a lawyer represent a client in court? Let’s start with the basics. Legal representation occurs when a lawyer has been appointed to represent you in a legal context. The relationship between a lawyer and a client in such a situation is established through a process known as the attorney-client relationship and it confers a variety of responsibilities and obligations upon both parties. Among other things, this relationship establishes a "fiduciary relationship" in which the lawyer has a duty of loyalty to the client. This means that the lawyer must act only in the best interests of the client at all times and within the bounds of the law. As part of the federally funded American Bar Association found in the "Definition of the Lawyer-Client Relationship: A Report of the ABA Standing Committee on Federal Judiciary": "The client must understand that the lawyer, in representing the client, is free to act at all times in accordance with the lawyer’s understanding of the law and ethics applicable to the lawyer’s practice , unless the client specifically instructs the lawyer otherwise. The client’s instructions as to the law that is contrary to the lawyer’s understanding may give the lawyer pause, but if the instructions are clearly understanding and reasonable, the client’s instructions must be followed and the lawyer must advocate them zealously." This means that your lawyer has the obligation to zealously represent you according to your wishes, to follow your instructions and to make all of the appropriate legal arguments in your favor that apply to your situation and the case at hand. More often than not, the client’s wishes are that their lawyer simply gets them going down the right path as quickly as possible in order to put the issue behind them. Sometimes this isn’t possible, and the matter must be addressed in court. When it comes time to represent you in court, the lawyer has the responsibility to file all relevant papers in order to begin the process. From there, the lawyer will represent you at any pre-trial hearings in order to establish the timeline for the next steps in the case. Finally, when the hearing reaches its conclusion at trial, the lawyer will present evidence and make any arguments necessary to effectively communicate your side of the case to the judge.
Attorney Participation in Court Hearings
As a general rule, there are several proceedings in which a lawyer can appear for a party without either a motion or permission from the court. Where representation by a lawyer for a party is covered by rule, the lawyer’s appearance is usually required to be made by filing and serving a notice of appearance.
Numerous provisions of the CPLR expressly authorize an attorney to appear for a party without special appointment by the court. For example, CPLR 318 permits an attorney to appear and answer for an infant or incompetent person on filing a verified consent of the infant or incompetent person. In all actions brought in the name of a foreign corporation, "any lawyer authorized to practice law in the courts of the state of New York" may be authorized by that corporation to appear for and act on its behalf, without special order. In personal injury and wrongful death actions, a representative of a decedent’s estate may enter the action and "proceed to judgment and execution" without obtaining letters testamentary or letters of administration.
A corporation may be represented in court by a director or officer at any stage of an action or proceeding in which the corporation is a party, in accordance with CPLR 321(a). A copy of each notice of appearance must be filed with the court and served on all parties (unless such notice is not practicable before the expiration of time to answer). In addition, an appearance must be made in connection with a business structure other than an incorporated organization. A fundamental and long-standing principle of American law is that an attorney, as an agent, may appear for and represent a corporate or individual client in every stage of a case, including trial and appellate review.
The policy to allow a lawyer to appear at trial on behalf of a party is that particular technicalities of procedure should not bar a party from his day in court. It is not necessary that an attorney have been duly retained, nor that he have a certificate of his authority or a formal written retainer. The attorney’s actual authority, apparent or implied, is sufficient.
In criminal proceedings, CPLR 1102 does not require the consent of the court for a law partner, associate, retired or unemployed district attorney or any person authorized by law to prosecuted offences involving moral turpitude, such as felonies or misdemeanors, to appear and prosecute negligence. There is some authority for the proposition that, because that provision does not expressly mention felonies, it was not intended to permit counsel to appear for the prosecution in a felony prosecution without court approval.
There are several other provisions in the CPLR where an attorney may act for a party or perform specific acts on behalf of a party or as an officer of the court, such as service of a summons and complaint in a foreign country under an international agreement.
Restrictions on Attorney’s Appearance in Court
There are some circumstances where the rules of a Court prohibit or restrict an attorney from representing a client at certain hearings or within certain Court jurisdictions. This is especially true for lower level Courts in Arizona, such as Justice Courts and Municipal Courts. The rules of Justice Courts (largely contained in Arizona Rules of Procedure for the Justice Courts) and Municipal Courts (which largely follow the Justice Court rules) do not forbid the representation of parties by attorneys, but also do not provide any right to have an attorney appear for a party. This means that if a Justice Court or Municipal Court Judge feels that there are unique facts or circumstances involved in a case or if the Judge simply wants to speak directly to a litigant about his or her concerns, the Judge can forbid the attorney from making court appearances. Unfortunately, some Judges take this authority to the extreme and refuse to allow attorneys to represent clients, even though the attorney’s presence would further the interests of justice. Arizona Courts of Appeals, however, have held that a Justice Court Review Judge may order an attorney to appear before the lower Court on limited issues associated with a specific case. This is not case law in the way that it applies to all cases because the decisions are unpublished, but at least it helps to establish some precedent for the Justice Court system as a whole.
There are also some types of hearings where the rules prohibit or restrict the appearance of attorneys. For example, in some jurisdictions and for some types of cases, attorneys must be newly licensed in order to appear before a Court, meaning that the attorney cannot have been previously admitted by the Arizona Supreme Court. This almost always applies to small claims courts, which prohibit attorneys from appearing or representing parties. There are also Municipal Courts, such as Scottsdale Municipal Court, where attorneys are ethically prohibited from representing people charged with Class 2 Misdemeanors or lower, except under very limited circumstances.
Perks of Having Your Attorney Go to Court for You
When a lawyer represents a client in court, especially in a divorce, custody, or other family law matter, it helps to establish credibility with the Judge or Hearing Officer. A lawyer who has a rapport with the Judge is more likely to have that position, allegation, or argument be given greater weight then if the particular Judge or Hearing Officer has never seen you before.
Having your lawyer represent you in court helps your lawyer make the best presentation possible, which includes getting words out in or taking the right steps in a way that will carry more weight than if you were there. Hearing Officers and judges are human and have good days and bad days; a lawyer handles the vicissitudes of court appearances and clients on a regular basis.
A lawyer paid to represent you in a court matter brings experience and knowledge on what goes on in the court system. Court procedures and courtroom behavior generally often differ among counties and within individual courthouses. A Massachusetts family court lawyer not involved in your case may have no idea about the courtroom norms in your case. That includes things as simple as where you sit within the courtroom to things as complex as required paper formats for pleadings or the rules of court of the particular county. Having an experienced lawyer who does not need to be told may save hours of court time over the life of the case.
How to Ensure Your Lawyer Can Go to Court for You
It is the client’s responsibility to ensure you have appropriately authorized your lawyer to represent you in court. This means before your lawyer can speak for you or appear for you in court, the lawyer must be authorized by you to do so. In most states, this means that you have to file a document with the court, which states that your lawyer is authorized to represent you in that particular case.
This court filing is referred to as a notice of appearance. In some states, the notice of appearance can be accomplished through the filing of a notice of substitution of attorney. That document not only authorizes the attorney to represent you , but it also serves to remove the previous attorney from the case. All parties in the case are served with the notice of appearance at the time it’s filed with the court. But to be safe, you should always follow-up with your attorney to make sure that he or she has provided a copy of the notice of appearance to all of the other parties in the case.
The notice of appearance must include the name and address of the party on whose behalf the attorney is appearing, along with the signature of the attorney. It is not uncommon for the attorney to sign the notice of appearance before obtaining it from the client. In this instance, the attorney must also provide a declaration to the court stating that he/she has the client’s permission to sign the notice on his or her behalf.
Choosing a Lawyer Who Can Go to Court for You
When contemplating a court appearance, it’s natural to wonder how to choose the right counsel. After all, a lawyer’s representation could be the difference between winning and losing. In the previous section of this article, we focused on whether a lawyer could represent you in court. This section takes a different approach; focusing instead on how to determine if a lawyer is well suited to represent you in front of a judge or jury.
First, note whether the attorney in question is actually going to appear in court. Different lawyers tend to have different skills and preferences, which can affect whether they will personally appear and how comfortable they are appearing in front of a judge. Some lawyers like to settle cases and never appear in court. Others feel most comfortable when they are appearing in court. Look for an attorney who appears comfortable appearing in front of a judge and jury.
Second, find out whether an attorney is willing to work with you. Your comfort should be paramount when placing your future in someone else’s hands. An attorney should always be ready and willing to answer any questions that you have. Your first impressions of an attorney are important. If an attorney does not seem interested in communicating with you properly or if you do not feel comfortable dealing with the attorney, you should absolutely ask to speak with someone else.
Third, it’s important to ask an attorney about his or her experience in court. This can be done during the initial consultation. In addition to showing you that an attorney is experienced and qualified, an attorney’s response to this question may clarify what type of representation an attorney can offer. If the attorney does not mention that a judge or jury will be deciding your case, it could indicate that the attorney does not plan to appear in court at all.
Fourth, be sure to communicate with an attorney about the anticipated costs and benefits of appearing in court. Every case is different, so the answer to this question will vary from case to case. Questions to consider include whether an attorney will charge you by the hour, if there is a flat fee, or some combination thereof. The answers to these questions should help you get a better picture of how a case will proceed.
Finally, remember that your comfort is of utmost importance when selecting an attorney to represent you at trial. Hopefully the preceding questions will allow you to determine how you feel about retaining an attorney to appear in court on your behalf. Best of luck!
Cases, Examples, and Legal Precedent
Clients, especially those from out of state, routinely ask if I can handle their case even if they cannot be in court for arraignments, pre-trial conferences, or jury trials. They are often surprised when I say yes. Why? Because as attorneys, we are lawyers and officers of the Court. We have a duty to defend our clients’ due process when they are charged with a crime.
Our office has had several notable cases where defendants could not be present – two in particular ones that were dismissed or had charges reduced significantly. The first case involved a defendant who was arrested for and charged with selling drugs. He left the country shortly after the arrest, and his arraignment warrant was issued in his default. I filed a motion for extension of time to appear before the arraignment warrant went into effect, and the Court granted it for 6 months. During those six months, my client moved, got another job, and remained drug-free. At the end of that time period, we appeared in court, and the charges were dismissed . (Under the circumstances, the Probation Department’s recommendation was to dismiss the charges.)
In another case, I had a female client who fled the State the day after she was arrested for drunk driving. The police had slapped the cuffs on her and threw her in their police cruiser after she failed a preliminary breath test, which indicated that she had a blood alcohol content (BAC) of .18 percent (.08 percent is the legal limit). My client knew she had a bad drinking problem and left Massachusetts to detox and get treatment. She considered that arrest a blessing in disguise so that she would get the help she badly needed. In the meantime, she wrote to the Court and requested to waive her arraignment rights and wanted a lawyer appointed to represent her. When I took over as her attorney, I promptly filed a Motion to Waive Arraignment. Ultimately, both charges were dismissed against her even though she was not present. Because she completed a rehabilitation program and was an active member of sober living at the time, we believe that the Commonwealth was not interested in her return.