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A blog by members of the Wake County Bar Association/Tenth Judicial District Bar's Professionalism Committee members.

 

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Phyllis B. Pickett Recieves 2019 Joseph Branch Professionalism Award

Posted By Administration, Tuesday, October 15, 2019
Updated: Tuesday, October 15, 2019

Maria M. Lynch, Lynch & Eatman LLP

The 2019 recipient of the Joseph Branch Professionalism Award is Phyllis B. Pickett. Phyllis is an outstanding lawyer, bar leader, community leader and occasional fountain pen surgeon. Phyllis started her legal career working for Legal Aid in southeastern and northeastern North Carolina. From Legal Aid she moved to Wake County and served as an assistant county attorney for four-and-a-half years. In 1991, Phyllis was recruited to join the staff of the General Assembly, in part because of her expertise in local government law and county issues. She has been a staff attorney at the General Assembly ever since. 

Phyllis serves as the principal legislative analyst and staff attorney for the Legislative Drafting Division. While her initial focus at the legislature was county law, today she primarily handles appropriations and information technology issues, as well as employment law. Employment law is the one constant throughout her legal career. As a legal services attorney she represented plaintiffs, as an assistant county attorney she represented the county as a defendant, and at the general assembly she drafts labor and employment laws. The Legislative Drafting Division is non-partisan, and as a staff attorney Phyllis deals with people from all walks of life with various political viewpoints. 

Phyllis is a double Tar Heel, having obtained her undergraduate degree in 1979 as a history major and James M. Johnson Scholar, then her law degree in 1982. Throughout her legal career, Phyllis has been involved with local, state and national bar associations. At our own Wake County and Tenth Judicial District Bars, Phyllis has served on the Leadership Development Committee, the Nominating Committee and the Grievance Committee. She also served as Secretary of the WCBA and Tenth for two years. 

Phyllis has also held a number of leadership positions at the North Carolina Bar Association.  She has Chaired the Endowment Committee, served on the Board of Governors, has Chaired the Membership Committee, the Administrative Law Section Counsel and served as Co-chair of the Committee on Women in the Profession. Phyllis has also been heavily involved with the American Bar Association where she has chaired the Judicial Division Lawyers Conference and the Perceptions of Justice Steering Committee.  She served on the Standing Committee on the Law Library of Congress and served as Section Advisor to the Uniform Law Commission Drafting Committee on the Uniform Electronic Legal Material Act. 

When asked what she does for fun, Phyllis says “I’m a baby boomer… work is my fun.” She does, however, enjoy traveling with her spouse LaVie. They are active at St. Ambrose Episcopal Church, and Phyllis served four years as a delegate to the annual convention of the North Carolina Episcopal Diocese. 

In writing this piece, I learned a lot about her main hobby. She collects and uses mostly modern and some vintage fountain pens. She is especially fond of Japanese and Italian brands, but apparently there is an emerging brand based here called Franklin-Christoph. She has visited their factory in Wake Forest. She also repairs pens, including performing delicate ink bladder “surgery.” The Triangle has a very active fountain pen community and hosts an annual pen meets in Durham and Raleigh.

Phyllis believes one of the most important aspects of professionalism is mentoring, both being a mentor to others and having mentors your entire career. She cites among others who have been mentors to her, Lisbon Berry and Jim Wall, two civil rights lawyers she admired for their grit. In her mid-career, former Wake County Attorney Mike Ferrell and North Carolina Supreme Court Justice Pat Timmons-Goodson gave her insight and calm in framing issues. Gerry Cohen at the Legislature was always a willing teacher. 

One aspect she loves about the law is working closely with diverse lawyers; not just in terms of gender, race, ethnicity and political views, but also generational diversity. Phyllis says she learns so much from her younger colleagues. They have affected her worldview and her perspective on issues and problems, but I believe she has had an even more profound effect on theirs. 

Tags:  Branch Award  Professionalism 

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Humility is the Highest Form of Professionalism

Posted By Administration, Monday, September 30, 2019
Updated: Sunday, September 29, 2019

The Honorable Ashleigh Parker Dunston, Wake County District Court

If we took a moment to think of one of the attorneys that we admire the most who embodies professionalism, poise, and proficiency, there is typically one other word that we can always use to describe this person--humble. Merriam Webster defines humility as: "freedom from pride or arrogance." I love this definition because of the word freedom. Freedom indicates that you have broken away from a norm or that you have the autonomy, maturity, or self-governance to do something different. In this instance, doing something different is not being prideful.  

 

As attorneys, we all need have a healthy balance of confidence and swagger that makes us good at what we do. If we're honest, we know that there's no better feeling than successfully winning that trial, writing a brief, or mediating between difficult clients. The question is, when does it become unhealthy? When does our arrogance and egotistical attitude become a part of our character, instead of just the result of a circumstance? When do we allow it to dictate how we operate when interacting with our colleagues?  

 

C.S. Lewis said, "Humility is not thinking less of yourself, it's thinking of yourself less." I've learned that humility is either something that you have or something that you'll be forced to have. I've personally had to swallow my pill of pride several times and been lowered to levels emotionally that I hope that I don't see again anytime soon. While serving on the bench, I try to constantly remind myself that my job is not to "judge" the individual, but to help them. We are all one decision away from ending up at the defense table or facing a jury of our peers. Humility means recognizing that we shouldn't be too proud to be transparent about our faults and shortcomings, seek help when necessary and have a heart of gratitude for the opportunities that we've been given. We can practice humility by making a conscious effort to thank our staff, celebrate the successes of others, ask for and accept feedback, and always be willing to learn new and better ways to do things.

 

No one is perfect and we all have room for growth in all areas of our lives. We must always remember that success is temporary, treating people with respect is free, and humility is one of the most important characteristics that we should strive for in professionalism.

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David and Goliath

Posted By Administration, Thursday, September 12, 2019

Cody J. Davis

The story of David and Goliath tells of a military standoff between the Philistines and Israelites. The Philistines greatest warrior, a giant named Goliath, challenges the Israelites to send their greatest warrior to fight him in hand to hand combat. As the story goes, a small shepherd boy, David, inexperienced in battle, is the only volunteer. David prevails over Goliath by stunning Goliath with a strike from a single stone propelled by his sling. With Goliath incapacitated, David beheads the giant, defeating the Philistines.

Malcolm Gladwell’s book "David and Goliath: The Advantage of Disadvantage," illustrates how this biblical allegory reflects our habit of underestimating the value of people based on inaccurate assumptions about or misconceptions of the able and competent person. Goliath and the Israelite army underestimate David’s ability by relying on their understanding of a capable warrior. They assume David’s approach to combat would be similar to theirs, and they fail to consider how David’s skills could be utilized in this battle.

In a similar way, people may discount or fail to accurately perceive the capacity of individuals with disabilities as collaborators, adversaries, leaders, or in a variety of other roles. I believe this is not due to malice but to one’s failure to comprehend how a person with a disability can do what they cannot imagine doing themselves were they to be the one with the disability. This often stems from uninformed, false or harmful perceptions of disability that we rely on in assessing the aptitude and competency of persons with disabilities.

The legal profession is not immune to discrediting the abilities of persons with disabilities. Just as the Israelites and Goliath underestimated David based on their perceptions of a capable warrior, so might we underestimate our colleagues with disabilities based on our perceptions of the capable lawyer. One obvious impact this has on our profession arises in the employment context. When employers fail to understand the competencies of a candidate with a disability, they not only prejudice the candidate, they also deny themselves, their firm or their organization the value of the candidate’s contributions. In the aggregate this reality starves the legal profession of talented lawyers, judges and leaders, stifling the legal profession’s validity in the eyes of the public.

Perhaps less obvious is how a failure to recognize the capacity of persons with disabilities may affect a lawyer’s approach to her work with a colleague or adversary with a disability. In the context of collaboration, a lawyer who underestimates the competency and abilities of a colleague with a disability may fail to ask for contributions to a project. Similarly, a lawyer may believe they must overcompensate for what they think the colleague with disabilities is lacking. Further, a collaborating lawyer may inadvertently place arbitrary limitations on a colleague with a disability by denying them an opportunity to demonstrate their true aptitude.

As an adversary, it would be a great disservice to oneself and one’s client to discount the capacity of a lawyer with disabilities. To do so could result in being ill-prepared for a negotiation, hearing, or trial. This is Goliath’s fatal flaw. He underestimates David as a warrior; thus, he is ill-prepared to match David’s skill. The key to David’s success is his aptness to capitalize on his abilities rather than highlighting his weaknesses. David cannot defeat Goliath by the means the Israelites and Goliath expect him to use. Instead, David takes a different approach to battle, relying on his remarkable skills as a stone slinger.

To avoid the fault of Goliath and the Israelites, we as a profession must refrain from assessing colleagues with disabilities based on our own limited conception of a capable lawyer. In every interaction with a colleague with a disability, we must reach beyond our own understanding of legal practice and be open to learning about myriad  alternative techniques and approaches to practice that colleagues with disabilities offer. It very well may turn out that, through their efforts to conquer some barrier, they have developed more efficient or effective methods that you can use to your advantage.

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Mentorship: Helping Law Students and New Attorneys Find Their “Why”

Posted By Administration, Thursday, August 29, 2019

Tara Regimand Anstett, Campbell Law School Assistant Director of External Relations

Mentorship was my “why” in law school. I enjoyed clubs, organizations, and classes but never quite felt that my interests, background, or goals aligned with those around me. I entered my third year of law school searching for deeper connections and a group or community where I belonged. I found that place and formed my initial views of professionalism in the practice of law because of one Wake County attorney’s decision to mentor me.

Campbell Law Connections Mentorship Program pairs third year law students and new attorneys (protégés) with practicing Wake County attorneys (mentors). Matches are generally based on the protégés’ interest areas, and all mentors are trained on mentorship theory and the expectations and purposes of the program. Protégés’ interests and ultimate professional goals are the driving force behind the program, which makes it unique from other mentoring relationships.

I was fortunate to be paired with Carmen Bannon, Deputy Counsel with the North Carolina State Bar.  I visited my mentor in her office, watched her depose a defendant, saw her teach two CLEs, and went to Wake County Bar Association luncheons with her. My first realistic glimpse into the practice of law happened solely because she allowed me to join in her legal and professional commitments. Her work ethic, attitude, and professionalism completely changed my view of attorneys and of the Wake County bar. She checked in on me when I struggled and celebrated my successes. She got coffee with me before the Bar Exam and encouraged me. She asked me questions, gave me advice, and came to my wedding.

I could go on and on about my mentorship experience but instead will leave you with a final thought. Why aren’t more attorneys eagerly searching for opportunities to mentor law students and young attorneys? The commitment is not big, but the value is huge. I challenge each of you to consider what you could contribute and teach a law student or new attorney. You could impact your protégé in more ways than you realize, just as Carmen impacted me.  

If you would like to participate as a mentor in this year's program, please contact Tara Anstett at tanstett@campbell.edu.

Tags:  Campbell Connections  Campbell Law  Mentor  Mentorship 

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What Will Be Your Story?

Posted By Administration, Thursday, August 1, 2019

Edd Roberts, Roberts Law Office, PA

While I never have been one to sing my own praises, I was asked to write an article on “what will be your story,” a question most definitely appropriate to ponder at this stage of my life. Even though I’m nearly fifty, I consider myself a work in progress. In every facet of my life, as a spouse, a parent, a son, a professional, and an advocate, I continuously reflect on ways in which I can better myself. My two sons are constant reminders of why it is important to put forth the best version of myself and to do so daily. They are like sponges, soaking up everything I say, do, and don’t do.

Just the other day my seven-year-old, who I thought was fully engaged in playing with his younger brother in the other room, was listening to my telephone conversation with a client’s parent about her son being locked up in jail. In a way only a child would dare to ask, he inquired, “Dad, how come you help someone that did such a bad thing that he is locked up in jail for it?” Caught off guard with the bluntness of his question (if my seven year old son has a filter, he has yet to find it), it took some time before I responded with, “sometimes we are asked to do things that are not always understood by everybody, but are necessary because that is what makes our system of fairness work.” I’m not sure if he understood the full depth of those words, but the time it took me to think of them, share them, and later reflect on them made me realize that what I do professionally and how my sons perceive that aspect of my life is very important to me. I want them to see me as committed to an honorable and necessary profession. In order for that to be part of my story, every day for the rest of my life I must strive to be a better version of myself.

Ralph Waldo Emerson said it best, “To laugh often and much; To win the respect of intelligent people and the affection of children; To earn the appreciation of honest critics and endure the betrayal of false friends; To appreciate beauty; To find the best in others; To leave the world a bit better, whether by a healthy child, a garden patch, or a redeemed social condition; To know even one life has breathed easier because you have lived. This is to have succeeded.” I can only hope that some of Emerson’s words are found living and well in my own life.

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Do What You Say You're Going to Do

Posted By Administration, Friday, July 12, 2019

Ryan Shuirman, Yates, McLamb & Weyher, LLP

I saw a television commercial the other day that said something to the effect of “90% of parenting is just showing up.” My immediate reaction was, “if only it was that easy.” Without commenting on anyone’s parenting skills (or lack thereof), we all know that our clients demand more of us than just showing up. When it comes to our professional relationships, and especially with opposing counsel, it really starts with doing what you say you’re going to do.

We are told in law school professional responsibility courses that your reputation can take years to build but can slip away with one bad decision. Few things build reputation more easily than simply following through on what you tell other parties you are going to do in a case. Whether it is producing items in discovery, filing a motion, serving timely responses, or answering benign and straightforward questions directly, simply doing what you say you are going to do does more to build credibility and reliability with other lawyers and, ultimately, your clients, than many of the cleverest strategic litigation maneuvers you could envision.

From the other perspective, receiving promises from opposing counsel about what will be produced or filed sets reasonable expectations. Perhaps more commonly, extending a professional courtesy to opposing counsel on an extension of time to respond to discovery necessarily sets a reasonable expectation that you will receive what has been promised in a timely fashion. Failing to fulfill your end of the bargain and following through with what you said you would do undermines good will and punishes a professionally courteous lawyer for extending a deadline for you.

Sometimes it really is that simple. When you promise to obtain dates for a deposition to occur, obtain the dates. When you request more time to serve discovery responses, serve responses before the deadline opposing counsel has so graciously extended for you. When you assure opposing counsel that you will make a decision as to whether you will pursue a claim or assert a defense within a given period of time, make that decision without requiring opposing counsel to follow up with you. Be the kind of lawyer for whom follow up is unnecessary.           

We all get busy. We all get distracted. There are any number of reasons why an informal deadline can come and go without a great impact on a particular case. But the impact on your reputation for reliability, and the detrimental impact on our ability to rely on another lawyer’s word, can be much greater by not following through on even the simplest of tasks. Although I don’t know that just showing up accomplishes most of what we need to do as parents, following through on what you have promised in your professional relationships suggests a reliability that ultimately will serve you and your clients well beyond any individual case.

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Take a Lawyer to Lunch

Posted By Administration, Monday, July 1, 2019
Updated: Friday, June 28, 2019

Douglas J. Brocker, The Brocker Law Firm

When I first began practicing law in North Carolina, one of my primary mentors told me about a strict policy he followed concerning filing sanction motions against an opposing attorney. His practice was to invite an opposing lawyer to lunch before filing any such motion for sanctions against that attorney.  The primary reason for this procedure was to ensure that he had considered the position of, and other potential facts and circumstances from, opposing counsel.   It was essentially his  private principle of professionalism, to make sure  he had the rest of the story, and to potentially preserve an important professional relationship before filing any pleading that explicitly or at least implicitly accused another lawyer of improper conduct.

In the many years since getting that excellent advice, I have followed it consistently and fortunately have never filed a motion for sanctions against an opposing attorney. However, I’ve also expanded the principal to include other types of communications. For example, before sending a letter or email to opposing counsel that might suggest some sort of improper conduct, I’ve strived to speak with the attorney either in person or at least by phone. While I can’t say that this prevented me from sending every adverse communication over the years, there have been many instances where I was very glad that I reached out to make that personal contact and, in many instances, I ended up never sending the letter, email or other communication. In contrast, on the rare occasions where I have sent that type of accusatory communication without making personal contact first, I have typically regretted it and wished that I had reached out first.

While this principle is not perfect, I believe that if opposing lawyers would have more personal communications, including going to lunch or some other meeting, there would be much less acrimony and fewer unprofessional exchanges among lawyers. It is simply harder to file pleadings and send other communications making allegations against an attorney that you know personally. Additionally, understanding others’ positions and being empathetic is a critical part of being a successful attorney.

The theme of the Professionalism Committee for 2019 is, “How do you want to be known as a lawyer, including when you’re gone?” Personally, I want to be known as the kind of attorney like some of my mentors, Ed Gaskins and Judge Franklin Dupree, who treated all lawyers and everyone else involved in the legal and judicial process with respect and professionalism. Taking a lawyer to lunch, or otherwise having direct personal communication, before making any professional accusation is certainly a good way to start.  

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What Will Be Your Story? A Memorial Tribute to Allan Head

Posted By Administration, Monday, June 3, 2019

Editor's Note: Allan B. Head, the long-time executive director of the North Carolina Bar Association and long-time treasurer of the Wake County Bar Association, was one of our Tenth members recently recognized at the Tenth Judicial District’s memorial session of court held on April 12. Melissa Essary, professor and former dean of Campbell Law School, presented Allan’s tribute, and it fit directly with our professionalism committee’s theme for this year: what will be your story? You can read her remarks below and also view the memorial session online, which recognized J. Allen Adams, John W. Herron, Robert Worthington Spearman, Reuben Grove Clark, III, and Robert Marcus Lodge in addition to Allan.

 

Melissa Essary, Campbell University Law School

When Allan’s wife Patti called to ask if I could give a brief eulogy, my deep honor turned to a bit of anxiety. Who am I to speak of Allan, who generously embraced and even loved so many of us in this room? But my anxiety has turned back to honor, and I speak briefly today with passion about the man I knew for only eleven short years, Allan Head.

I met Allan just before I became Dean of Campbell Law School in 2006 at an annual [North Carolina Bar Association] meeting. He didn’t know me but greeted me as though I were a long-lost friend. I was new to North Carolina, new to the [NCBA], but felt I’d found a home in this warm, friendly man. We were at the beach that year, and beach music blasted that final night. Allan said, “Do you want to shag?” Being a native Texan, I realized that either my new friend had issues or was speaking a foreign language. I hoped it was the latter and agreed to dance this jitterbug dance, ultimately laughing until my sides were hurting.

And that was the beginning of a beautiful friendship with this man who embodied so much that is good in our world: passion, warmth, kindness, and humor, all while leading and building over 43 years’ time one of the best state bar associations in the country—if not the best.  And he did this all while being a husband of more than 50 years to his beloved Patti, a father to three children, and a grandfather who still skied, ziplined and more. He was just a cool guy.

If you knew Allan, you knew the twinkle in his eye, you knew the laughter around the corner, you knew the friendship that is a footprint on our hearts.

For in Allan, life was to be lived, people were to be embraced. His buoyant enthusiasm for life and laughter was contagious and lifted all those in the room. His “Can-do” attitude infected me and my leadership at Campbell Law School. All of a sudden, I found myself in a state that welcomed Deans and interested lawyers to the table of a committee called the Law School Liaison Committee, an idea created by Allan that brought all legal education leaders to the table to learn from each other and support each other.

In my native Texas, such a thing was absolutely unheard of. Law schools were silos and competitors. But to Allan, who supported deeply our state’s law schools, a rising tide lifted all boats. And he was right. I couldn’t believe the support that we as deans received from the bar association and from each other, all of Allan’s doing. Allan wanted the best for every law student in this state, and he shepherded more than a few of them into law school, through law school, and into the practice. Today, Madison Sides, a current 1L at Campbell, sits beside Patti. I remember the last time I saw Allan: it was when he brought Madison to my office to introduce her to me as she was looking at law schools. He was fragile, and in this last act of kindness, still paying it forward.

As I close, I simply throw out these words: family, faith, friends. Allan Head was so much to so many. To me, he was a true friend whose broad smile and broad embrace are seared in my heart. Rest well, dear friend. We know you’re jitterbugging with the angels.

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A Matured Idealism

Posted By Administration, Wednesday, May 1, 2019

David Sherlin, Holt Sherlin, LLP

 

Lawyers, I suppose, were children once.”     --Charles Lamb

The above quote is the epigraph to Harper Lee’s classic To Kill a Mockingbird. It’s simple, poignant, and in my opinion, replete with the notion that we as lawyers start our careers much like children start their lives: full of hope and free of cynicism. I consider myself one of these lawyers. I started practicing law in 2005 with the idealistic notion that all attorneys would play fair, be honest, and treat one another with respect. Having practiced law for the past fourteen years, and I can now say with experience (some may call it age), my idealistic belief that all attorneys would adhere to a sense of fairness and honesty was perhaps too lofty an expectation. 

Anyone who has practiced law for a significant portion of time has seen both the best and worst from our profession. The best are attorneys like Bonnie Weyher, Ed Gaskins, Hart Miles, Victor Boone, Wade Smith, and Dan McLamb. Common traits that run throughout these attorneys are work ethic, honesty, professionalism, and a sense of community. Even when on the opposite side of a case from one of them, I know that I am working with the very best and, most importantly, with someone that I can trust. As a young attorney, these traits are the ones that I hoped every attorney would have. 

As with anything else, hope doesn’t make it so, and I have witnessed attorneys acting well outside the Rules of Professional Conduct – and decency for that matter. Some of the most egregious instances of unprofessional conduct that I have witnessed relate to Rule 4.1, Truthfulness in Statements to Others. This is one of those rules that was clearly written by lawyers, for lawyers. It reads, “In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” If I were drafting Rule 4.1, I’d write it just like I tell my children: “Don’t lie.” Simple, to the point, and easy to follow (hopefully!). 

My initial idealistic notion that all attorneys adhere to the same sense of fairness and honesty has taken a hit over the past fourteen years. Fortunately, however, my experiences have led me to a new conviction that is just as strong. Lawyers may be imperfect, but our legal community is full of good, honorable, honest lawyers whom, through their adherence to the highest of ethical standards, do right by their clients, and just as importantly, to our profession. 

 

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To Be Continued… The Ethics of Appearing Solely to Secure a Continuance

Posted By Administration, Monday, April 15, 2019

By: Emily Hurtt, Bagwell Holt Smith P.A.

If you haven’t done it, then you’ve probably thought about doing it: filing a limited appearance for the sole purpose of securing a continuance. Picture the scenario where a potential client calls your office and asks for your first available consultation—frantic, rushed—saying that they have a hearing in less than a week. Do you take the case? What if your schedule for the week is packed, but it’s a referral from a good friend, or a family member? Perhaps the better article would be about all the countless times this has happened to some of us and all the ways we’ve handled the situation.

I’m mostly interested in the scenario where the attorney decides to take the case with no intention of trying it on the merits, but rather for the sole purpose of securing the client a continuance. When this happens, usually the reason a continuance is needed is because the client needs time to get the money together to hire an attorney. Sometimes it’s because a client legitimately cannot appear on that date. If one of us were to help that client out, what are our ethical obligations surrounding such an arrangement?

On one hand, there doesn’t seem to be a clear rule against this, but we have obligations to our clients to ensure they are fully aware of the limited scope of our representation.  Rule 1.2(c) of the North Carolina Rules of Professional Conduct states a lawyer may limit the scope of her representation so long as the limitation is reasonable under the circumstances.  Rules 1.2 and 1.4 also require the lawyer to adequately communicate with her client to ensure the client fully understands and agrees to the limited nature of the representation.  On the other hand, practical considerations should potentially dissuade attorneys from entering a limited appearance for this purpose. For example, one big problem is if the client already had a number of continuances and the question becomes one of willful delay; a potential violation of Rule 3.2. A bigger problem is if you show up to the hearing prepared only to ask for a continuance, and the judge denies your motion. In that circumstance, would you proceed with the hearing unprepared, or have your client proceed alone? 99 FEO 12 contemplates that a lawyer “covering” for another lawyer should nevertheless be sufficiently familiar with the case and prepared to provide competent representation if appearing before the court on behalf of the client.  I shudder to think of the situation where a judge denies the motion and deems you counsel of record in the matter, subject to all responsibilities that would ensue as counsel of record.

Although your client likely has a reasonable need for a continuance, such that you are willing to make the limited appearance, this last worst-case-scenario is at least something to think about. At the very least, should the inevitable request for help obtaining a continuance appear in our doorway, we have a responsibility to clearly communicate the nature and limited scope of our representation not just to the client but also the tribunal, including our lack of familiarity with the case.  Then again, perhaps we’re all better off having the client draft his own motion for continuance.

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