RJA drafting rules for substitute attorneys.

Hoping for a simpler solution, the Rules of Judicial Administration Committee is taking its second stab at writing rules for the largely unregulated way attorneys arrange for substitutes at court appearances when they have a scheduling conflict.

The committee passed on first reading a proposed amendment to Rule 2.505 that could clarify which attorneys are authorized to represent a party and require covering lawyers, or stand-in attorneys as the rule refers to them, to file a notice of appearance unless they are from the same firm, company, or agency as the attorney of record in the case.

The committee acted June 15 at the Bar's Annual Convention. The rule will come back for final approval October 19 at the Bar's Fall Meeting in Tampa.

"What we're trying to solve is the issue of how attorneys get in and out of a case and whether coverage attorneys should be there," said Amy Borman, a former committee member who serves on the subcommittee working on the appearance rule.

She said the covering attorneys are not mentioned in Rule 2.505, which among other things governs how attorneys enter and leave cases. The practice of using covering or stand-in lawyers has largely evolved on its own with sometimes sketchy legal authority.

"There is caselaw out there that talks about when an attorney files something and they are not the attorney of record, what they file can be a nullity," Borman said, adding that district courts of appeal are split on the issue. Some hold the filing is a nullity, which means it is as if it never happened, and some hold it is void, which can be corrected if the attorney files a notice of appearance.

"We have to give you the authority to do what you're doing [as covering lawyers] but the compromise is you're going to have to file [a notice of appearance]," she said.

Borman said in one criminal case, the defendant tried to withdraw from a plea agreement, but the covering attorney's motion was struck as a nullity. By the time that was resolved, it was too late to change the plea. And in a recent 15th Circuit case, she said the judge struck a motion filed by a covering attorney who had not filed a notice of appearance. The judge declined to say whether it was a nullity or void.

Another problem is many court proceedings do not have a clerk and are not recorded, and sometimes after the fact, it can be difficult or impossible to tell what attorney or covering attorney was in court that day. Sometimes, Borman said, clients aren't even...