Can a lawyer use a nonlawyer-owned online service to find and hire per diem lawyers for court appearances, and does the client have to consent?
NY State Bar Ethics Opinion 1113: Per diem lawyers and an online directory
Short answer: A lawyer may participate in a nonlawyer-owned online directory used to find and hire per diem lawyers for court appearances, so long as the directory does not recommend or select the lawyers, is available only to lawyers and not to prospective clients, and charges participating lawyers a flat fee. Client consent is not needed where the per diem appearance is routine and non-substantive, and both the hiring lawyer and the per diem lawyer must check for conflicts.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The inquirer wants to use a nonlawyer-operated online service that connects litigators with per diem lawyers for court appearances and calendar calls. Per diem lawyers post their rates, availability, and practice areas; a hiring lawyer submits the date, time, location, and caption; the service returns a list of available lawyers with their rates, and the hiring lawyer chooses one. The service charges participating lawyers a flat fee, and only lawyers (not clients) can access it. The inquirer asks whether a hiring lawyer or a per diem lawyer may use the service, and whether client consent is required.
The committee first confirms that per diem lawyers, although hired by the attorney of record rather than the client, represent the client and owe the full range of professional duties: competence (Rule 1.1), diligence and punctuality (Rule 1.3), keeping the client informed through the hiring lawyer (Rule 1.4), confidentiality (Rule 1.6), candor and compliance with court customs (Rule 3.3(f)), and duties to adversaries (Rules 4.1, 4.2). The key question is whether the service is a permissible "directory" or a prohibited "lawyer referral service" under Rule 7.2(b)(3). Following N.Y. State 799 (2006), the line is crossed only if the service recommends particular lawyers; here, because it returns all lawyers meeting the hiring lawyer's own criteria without winnowing, it is a directory, not a referral service. Even so, Rule 7.2(a) applies to lawyer-to-lawyer services, but paying a flat listing fee to a directory does not violate it.
On conflicts, the current- and former-client rules (Rules 1.7, 1.8, 1.9) apply to the per diem lawyer, and under Rule 1.10(e) both the hiring firm and the per diem lawyer must run conflict checks; the service may assist, but the duty stays on the lawyers. Vicarious disqualification under Rule 1.10(a) does not apply to a one-off per diem engagement, because the per diem lawyer is not "associated" with the hiring firm. The flat fee is not improper fee sharing with a nonlawyer as long as it is unrelated to the per diem lawyers' fees. If the service publishes ratings or reviews, the per diem lawyer must ensure they are accurately described (Rule 7.1, Cmt. [13]). The committee treats the arrangement as the hiring lawyer outsourcing a discrete task, not a limited-scope representation under Rule 1.2(c), and notes that court rules (which it does not interpret) may require appearing counsel to be fully familiar and authorized. Finally, client consent to hire a per diem lawyer is not required where the appearance is routine and non-substantive.
In practice
Under this opinion, a New York lawyer may both use and be listed in a nonlawyer-owned online per diem directory, provided the service merely filters by the hiring lawyer's own criteria rather than recommending lawyers, is limited to lawyers, and charges a flat fee unrelated to the per diem lawyers' fees. The per diem lawyer carries the full professional duties of any lawyer to the client, court, and adversaries, and both the hiring lawyer and the per diem lawyer must independently check for conflicts; a single per diem appearance does not impute conflicts between them. Client consent is unnecessary for routine, non-substantive coverage, though more substantive appearances and applicable court rules requiring fully authorized counsel warrant separate attention.
Common questions
Q: Is a nonlawyer-owned per diem website a prohibited lawyer referral service?
A: Not if it does not recommend particular lawyers. Where it returns all lawyers meeting the hiring lawyer's own criteria without winnowing, it is a "directory," not a referral service under Rule 7.2(b)(3), and a flat listing fee is permissible (Opinion 1113 ¶¶ 15-17).
Q: Does the client have to consent to a per diem lawyer covering an appearance?
A: Not where the appearance is routine and non-substantive. More substantive per diem work may call for client consent (Opinion 1113 digest and conclusion).
Q: Who checks for conflicts, and is the per diem lawyer's firm disqualified?
A: Both the hiring lawyer and the per diem lawyer must check conflicts under Rule 1.10(e). A one-off per diem engagement does not make the per diem lawyer "associated" with the hiring firm, so Rule 1.10(a) vicarious disqualification does not apply (¶¶ 20-21).
Q: Is the flat fee to the service improper fee sharing?
A: No, as long as the fee is unrelated to the amount the per diem lawyers charge. A flat participation fee is not fee sharing with a nonlawyer (¶ 22).
Background and rules framework
The opinion applies Rule 7.2 (Model Rule 7.2) on payment for recommendations and the directory-versus-referral-service distinction, Rule 1.10 (Model Rule 1.10) on imputation and the Rule 1.10(e) conflict-checking duty, the core duties of Rules 1.1, 1.3, 1.4, 1.6, 3.3(f), 4.1, and 4.2, the current- and former-client conflict rules (Rules 1.7, 1.8, 1.9), and Rule 1.2(c) on limited-scope representation.
Citations and references
Rules of Professional Conduct:
- New York Rule 7.2(a), (b) (Model Rule 7.2): payment for recommendations; referral services
- New York Rule 1.10(a), (e) (Model Rule 1.10): imputation; conflict-checking system
- New York Rules 1.1, 1.3, 1.4, 1.6, 3.3(f) (Model Rules 1.1, 1.3, 1.4, 1.6, 3.3): per diem lawyer's duties
- New York Rules 1.7, 1.8, 1.9 (Model Rules 1.7-1.9): conflicts; Rule 1.2(c): limited-scope representation
Cases:
- Alveranga-Duran v. New Whitehall Apartments, LLC, 40 A.D.3d 287 (1st Dep't 2007): sanction for per diem appearance without settlement authority
Other opinions cited:
- N.Y. State 799 (2006): directory versus referral service; N.Y. State 902 (2012); 976 (2013): payment for recommendations / fee sharing
- ABA Formal Op. 88-356; N.Y. City 1988-3: temporary lawyer represents the client
See also
- NY State Bar Op. 1131: Paying a for-profit lead generation service
- NY State Bar Op. 1132: Paying Avvo Legal Services' marketing fee
- NY State Bar Op. 1116: Working with a nonlawyer foreign migration agent
Source
- Landing page: https://nysba.org/ethics-opinion-1113/