Can a North Carolina lawyer appear to 'cover' a hearing for another lawyer's client without the client's consent or a conflict check?

Plain-English summary

A bankruptcy lawyer had a scheduling conflict that kept him from a debtor's Section 341 meeting of creditors. Rather than seek a continuance, and viewing the meeting as routine and ministerial, he asked another lawyer, not a member or employee of his firm and with no partnership relationship, to "cover" for him. The committee addressed what that covering lawyer had to do.

The opinion held that whatever it is called, if the second lawyer appears with the debtor at the proceeding, she is representing the debtor and is subject to all of the ethical obligations in the Revised Rules. The client's consent to representation by the covering lawyer must be obtained, because the choice of counsel is the client's decision (Rule 1.4(b)). Before representing the client, the covering lawyer must determine whether she has a conflict of interest (Rule 1.7). Even a limited appearance made with the client's consent under Rule 1.2(c) requires competent representation, including adequate preparation under the circumstances (Rule 1.1(b)). Subject to the rules of the tribunal and with the client's consent, the covering lawyer may limit her appearance to representing the debtor at the Section 341 meeting (Rule 1.2(c)).

Currency note

This opinion was issued in 2000, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it cites the rules under the numbering then in effect (Rule 1.2(c), Rule 1.4(b), Rule 1.7, Rule 1.1(b)). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Is "covering" a hearing for another lawyer actually representing that client?

A: Yes. The opinion held that if the covering lawyer appears with the client at the proceeding, she is representing the client and is subject to all the ethical obligations in the Revised Rules.

Q: Does the client have to consent before another lawyer covers the hearing?

A: Yes. The opinion held the client's consent must be obtained because the choice of counsel is the client's decision, citing Rule 1.4(b).

Q: Does the covering lawyer have to run a conflict check and prepare?

A: Yes. The opinion required the covering lawyer to determine whether she has a conflict (Rule 1.7) and to provide competent representation with adequate preparation, even for a limited appearance (Rule 1.1(b)).

Q: Can the covering lawyer limit the representation to just that one hearing?

A: Yes, with the client's consent and subject to the tribunal's rules. The opinion allowed the lawyer to limit her appearance to the Section 341 meeting under Rule 1.2(c).

Background and rules framework

The opinion applied North Carolina Rule 1.2 (scope of representation, including limited representation under 1.2(c)), Rule 1.4 (communication), Rule 1.7 (conflicts of interest), and Rule 1.1 (competence), the analogues to Model Rules 1.2, 1.4, 1.7, and 1.1, to a lawyer making a limited appearance to cover a proceeding for another lawyer.

Citations and references

Rules of Professional Conduct:

• MR 1.2 (scope of representation) / NC Rule 1.2(c)
• MR 1.4 (communication) / NC Rule 1.4(b)
• MR 1.7 (conflicts of interest) / NC Rule 1.7
• MR 1.1 (competence) / NC Rule 1.1(b)

See also

• NY State Bar Op. 1012: Conflicts in Limited Pro Bono Legal Services
• NC State Bar Op. 2002 FEO 1: Collaborative Family Law and Limited Representation

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/99-formal-ethics-opinion-12/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Attorney A represents Debtor, an individual, with respect to the filing of a voluntary petition pursuant to Chapter 7 of the Bankruptcy Code. The first meeting of creditors pursuant to Section 341 of the Bankruptcy Code is scheduled by the clerk. Debtor is required to attend and answer questions under oath as presented by the trustee in bankruptcy or any other parties. Shortly before the date of the meeting, Attorney A has a scheduling conflict. This prevents his attendance at the meeting of creditors. Rather than seek a continuance, and being of the opinion that the Section 341 meeting is fairly routine and ministerial in nature, Attorney A contacts Attorney B and asks Attorney B to "cover" for Attorney A at the meeting. Attorney B is neither a member nor an employee of Attorney A's law firm and there is no existing partnership relationship with Attorney A. Attorney B agrees to accommodate Attorney A.

Must Debtor's prior consent to the representation be obtained, and what steps, if any, must be taken to determine whether there are conflicts of interest?

Opinion #1:

Although assisting Attorney A may be euphemistically described as "covering" for Attorney A, if Attorney B appears with Debtor at the proceeding, Attorney B is representing Debtor. Such representation is subject to all of the ethical obligations set forth in the Revised Rules of Professional Conduct. The consent of the client to the representation by Attorney B must be obtained because the choice of legal counsel is the client's decision. See Rule 1.4(b). In addition, prior to representing any client, a lawyer must determine whether there are conflicts of interest. See Rule 1.7. Therefore, Attorney B must determine whether she has a conflict of interest in representing Debtor at the Section 341 meeting of creditors.

Inquiry #2:

To what extent must Attorney B review the file or otherwise become familiar with the assets, liabilities, exemptions, or pre-petition transfers of Debtor?

Opinion #2:

Even if a lawyer makes a limited appearance in a matter with the consent of the client pursuant to Rule 1.2(c), the lawyer must provide competent representation, which includes adequate preparation under the circumstances. See Rule 1.1(b).

Inquiry #3:

Is Attorney B making a general appearance in the proceeding for all purposes with respect to the representation of Debtor, or is Attorney B's involvement limited to a special appearance for the purpose described above?

Opinion #3:

Subject to the rules of the tribunal and with Debtor's consent, Attorney B may limit her appearance to the representation of Debtor in the Section 341 meeting of creditors. See Rule 1.2(c).