Stepping Up May Need to Step Out

We see it on a daily basis in courtrooms throughout the state. A case is called, and an attorney walks to the bench, states her name, and informs the court that she is “stepping up” for the attorney of record for one reason or another. The step-up attorney does not have an appearance on file, but she is representing the party before the court in whatever the proceedings are for that day. While this is a very common practice, should it even exist?

Causation

The attorneys who have the engagement with the clients take their duty to be in court quite seriously and spend a great deal of time finding coverage so that their cases move forward. The last thing that they want is for their cases to be dismissed for want of prosecution, so they insure that a licensed attorney will appear in court for the client’s case.

Solo practitioners, small firms, and high-volume attorneys are generally the ones that utilize step-up counsel. There are only so many of these attorneys to go around, and they are simply unable to be in two places at once. Consumer collection attorneys find themselves needing others to appear in court for them because of the venue restrictions in the Fair Debt Collection Practices Act; foreclosure firms must sue in the county where the real estate is located under Illinois’ venue statute; multiple cases on the same date and time, but in multiple counties, happens quite often. These are just some of the reasons why step-up attorneys are used. Using step-up counsel is not done out of laziness or lack of concern for the case; it is just the opposite—attorneys work to find coverage and use step-up attorneys in order to insure that their cases are able to move through the system as efficiently as possible even though they are not able to attend that particular hearing.

Application of Rules

Rule 1.3 of the Rules of Professional Conduct requires attorneys to “act with reasonable diligence and promptness in representing a client.” The very first comment to Rule 1.3 states, inter alia, “[a] lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.” By hiring step-up counsel, an attorney is doing what she can to comply with Rule 1.3. The attorney is circumventing a personal inconvenience—the location of the court and the cost of hiring another attorney to step-up—in order to insure that the client’s case is diligently and promptly pursued. In other words, the attorney maintains her duty to the client despite the inconvenience and cost of finding and paying for another attorney to cover the case when she cannot be present.

Illinois Supreme Court Rule 13(c)(1), however, states: “Addressing the Court. An attorney shall file a written appearance or other pleading before addressing the court unless the attorney is presenting a motion for leave to appear by intervention or otherwise.” It seems quite clear that stepping up for another attorney when the step-up counsel has no relationship to the client or the case, or have an appearance on file in the case, is not an action contemplated by this Rule. Simply put, this rule requires that an attorney addressing the court must have an appearance on file for the party that the attorney is representing that day. However, there are other parts of Rule 13(c) that may be of assistance in this analysis.

Illinois Supreme Court Rule 13(c)(6),¹ enacted in 2013, allows for attorneys to appear for clients in a “limited scope.” Under this Rule, attorneys no longer have all-or-nothing appearances, and can appear for discrete parts of a case. An attorney can appear for a client for something as simple as a status hearing held on a particular date, or for something as broad as defending against counterclaims filed by defendants. While the Illinois Supreme Court has provided for attorneys to appear on behalf of clients in civil cases in a limited fashion, step-up attorneys rarely, if ever, file limited scope appearances. The likely reason that limited scope appearances are not often used by step-up counsel is that they do not have a relationship with the client, but only have a relationship with the attorney that represents the client. Rule 13(c)(6) requires that the limited scope attorney have a relationship with the client, not the client’s attorney. If step-up attorneys do not have a written agreement with the party being represented, which is a requirement for a limited scope appearance under Rule 13(c)(6), they are unable to file a limited scope appearance. Thus, the paucity of their use.

Effects of Strict Reading

What would happen to solo practitioners whose business model anticipates the use of step-up attorneys for their high-volume practice if such counsel were not allowed to appear for them in court? For example, many firms that focus on real estate foreclosures have only a handful of attorneys on staff and rely heavily on step-up attorneys to handle routine matters such as status dates, summons return dates, or obtaining briefing schedules. The primary firms often only appear in court for contested or dispositive matters and use step-up counsel for everything else. If such a firm is based in Chicago, it is just not cost effective to drive or even fly to the opposite end of the state for a status hearing on one case. What makes matters worse for foreclosure attorneys is that many of the larger loan servicers will only give foreclosure cases to firms that can cover the entire state, and most law firms do not have enough offices, attorneys, or staff to have their own attorneys appear in every county of Illinois at any given time. It would seem that a strict reading of Rule 13(c)(1) would effectively dismantle small firms with a high-volume practice.

There are also a number of attorneys that readily appear in court as step-up attorneys and make a decent living off of simply appearing in court for another attorney that cannot make it on any particular day. A strict reading of Rule 13(c)(1) would likely strike a massive blow to the business practices of these step-up attorneys.

Alternatives

We are in the 21st century. Appearing telephonically in federal court for routine matters has been available for several years. Many state courtrooms utilize third-party businesses to allow attorneys to appear by phone for many parts of a case. The downsides of appearing telephonically are that it must be arranged ahead of time, and it costs money each time an attorney utilizes the call-in service. Regardless of the needed planning and the required cost, if all courtrooms in the state utilized some form of remote appearance technology, then step-up counsel may not be needed. This would not cure the problem of being required to appear in multiple courthouses at the same time, or being required to appear in person for contested matters, but it would eliminate part of the impetus that drives the hiring of step-up attorneys.

Another alternative is a bit more drastic, but also seems to be what was contemplated when the rules for appearing in court were drafted—local attorneys should be used for local cases. An attorney in Cook County can either hire local counsel in a distant county so that local counsel can file an appearance and appear in court, or the attorney could refuse to take a case if she cannot appear for it on her own and does not wish to hire local counsel. This approach would disrupt the business models of many attorneys that rely on step-up counsel and could even force companies that require their firms to appear across the state to re-think this requirement. That is, however, what the rules seem to require.

Conclusion

It is seldom harmful if an attorney helps another by stepping-up on a case for the attorney who is unable to appear herself for whatever reason. Step-up counsel is an integral part of the business model of many small firms that operate high-volume practices, and also ensures that a client’s case is never dismissed for want of prosecution. However, Rule 13(c)(1) makes it very clear that any attorney that appears for a client in a civil matter must have an appearance on file. Technology is available that would allow attorneys to appear remotely, and courts and counsel alike should utilize this technology to the greatest extent possible. Unless the Illinois Supreme Court Rules change to allow step-up counsel, attorneys should consider revising their business models to adopt the utilization of technology or hire local counsel that can file an appearance in the case. Courts should also implement the use of cost-effective technology as much as possible since we are, after all, in the computer age.