When someone hires me to cover an appearance, I don’t pepper that law firm or attorney with a lot of questions which would satisfy my economic curiosity, but, after a while, I have picked up a fair amount of information about the entities and people receiving my services.  So, on the basis of my experience, I can say that the law firms and attorneys giving me assignments fall into two broad categories.

First, there are local law firms and attorneys.  They might be said to, on occasion, run into situations where they have more attorney work than they have attorney time.  This might be a rare situation, or a common one. The shortage of time might be an emergency, or distantly foreseeable.  If a common issue, the situations still might not come up steadily enough to justify the cost and risk of hiring a full-time associate attorney.  Hiring a full-time associate is a long term investment.  Because the work might not be steady enough, the alternative of hiring an associate might remain too risky, though, for periods of time at least, there seems to be enough work to justify a hire.

This group of local firms and attorneys, incidentally, only rarely includes, for example, the transactional attorney who has an unwanted litigation file.  In other words, the local firms and attorneys I have encountered in my appearance practice are generally firms and attorneys which regularly, though not necessarily exclusively, handle litigation of some kind.  

Even when a local firm has enough staff so that the firm has the ability to send an associate to cover a court appearance, there may still be an economic incentive to hire an appearance attorney.  The incentive comes from the fact that, in particular, single court appearances can very often be pretty inefficient.  An attorney might spend a lot of time in court just waiting, doing nothing productive or chargeable.  If that associate were back in the office, that attorney would be doing much more productive work.  Now, appearance attorneys encounter the same court conditions as any attorney.  You would expect  an appearance attorney to also spend time waiting.  But, unlike the associate with just one assignment from time to time, an appearance attorney might have multiple assignments from multiple firms, and these appearances are handled not consecutively but concurrently.  In other words, the appearance attorney with multiple appearances spends less time waiting.  Both the associate and the appearance attorney might spend all morning in court, but the appearance attorney might have handled two or three, or even more, appearances.  

You might think that this last scenario is only theoretical.  It isn’t. I know it isn’t theoretical because I have had more than one or two situations where I needed to contact the assigning attorney during an appearance, and I find the assigning attorney not in another court handling another appearance — assuredly, there are situations where I do find the assigning attorney in another court — but at the office.  Although I don’t believe it is yet common, I believe a growing number of attorneys are finding it more efficient to turn over their one or two court appearances to appearance attorneys, allowing the assigning attorneys to more productively use their time in the office, and helping appearance attorneys to more efficiently use their time in court.

If it is true that it might be a more efficient use of resources if the attorney, with regular, but occasional court appearances, uses the services of an appearance attorney, the calculus of hiring an associate changes.  An attorney would want to hire an associate to allow for coverage of court appearances not when the amount of time spent on court appearances amounts to a full-time schedule for an associate, but when there are a sufficient number of appearances so that the appearing attorney is spending a minimal amount of time waiting while working a full-time schedule.

The other type of law firm using appearance attorneys consists regional and national law firms.  These firms become regional or national because they find having a large (or larger) central office more efficient, because the large office can capture economies of scale of various kinds.  These firms might well find that having a lot of local offices is actually less efficient, in part because there is going to be less control over the local offices.  Many of these regional and national firms might be distant, though not necessarily.  If not distant, their concerns really operate like those of local firms and attorneys.  If distant, unlike the local attorneys, they have often three alternatives to satisfying demands on attorney time for appearances in New York.  They can open a local office and hire local associates.  Or, they can fly-in current associates.  They can also use appearance attorneys.  The following discussion will at least suggest that the use of appearance attorneys might be the more efficient (that is, providing the best profit picture while involving the least amount of costs, including risks which are really a type of cost) alternative.

Although New York courts are far from consistent in their enforcement of this rule, my understanding is that, if an out-of-state attorney or law firm wishes to handle litigation pending in a New York court, the attorney or firm must either maintain an office in New York State with at least one attorney admitted to the practice of law in New York State, or have one or more of its attorneys seek temporary admission pro hac vice through an in-state attorney.  So, the out-of-state attorneys has to have a local presence of some kind.  They achieve this, but not by opening an office or associating with a local firm.  Instead, out-of-state practices seek out a New York practice which is willing to allow the out-of-state firm to use the New York practice’s local address.  Essentially, the out-of-state firm for the payment of a nominal amount of “rent” obtains the right to say the out-of-state practice has a New York location, associate a telephone number with the New York address, and to install a plaque for the out-of-state practice at the front door of the New York practice.

Whether an out-of-state firm, or an “upstate” firm seeking to do “downstate” work, the option of opening a local office and hiring local staff is even more expensive and risky option than the option of local attorneys hiring a new associate, in that the distant firm is not just taking on the overhead of hiring an associate.  It is taking on the overhead of opening an entire office.  Further, the act of opening a local office might require the sacrifice of some of the benefits of having a large central office capable of capturing economies of scale.  So, there may well be disincentives for an out-of-state firm opening a local office.  And, indeed, the disincentives may be such that the plan of at least some regional and national firms seems to be to develop a cadre of reliable and competent local counsel, that is, the plan might be to rely on local appearance or per diem attorneys.

The option of having associates traveling to cover appearances in New York courts also seems to be a fairly inefficient use of an attorney’s time.  A local firm might lose a half-day of an associate’s time sending the associate on a court appearance.  A distant firm might lose the associate for an entire day, if not more, though some of this might be mitigated if the associate is capable of complete paperwork on a laptop .  In addition, the distant firm will have to pay travel expenses, which may well be high enough to more than cover the cost of hiring a per diem attorney.

The hiring of a local appearance or per diem attorney is, of course, not a perfect alternative.  The assigning firm would have less control of the appearance attorney than an associate, particularly when it comes to the reliability and capability of the appearance attorney.  However, this problem could be mitigation by trying to develop an ongoing relationship with the appearance attorney.  The appearance attorney might not do things the way things are done in-house, though this might be mitigated by simply asking the appearance attorney to do it their way.