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Kim Burgess had to decide whether she was a “hamburger” or “filet mignon” kind of attorney. Burgess initially thought she fit the filet mignon profile. She didn’t. “I’m a hamburger type,” she conceded in a Contra Costa County, Calif., courtroom last week. “I like things to turn over quickly.” Burgess found her niche by showing up in court for lawyers too busy or bored to do it themselves. “All my work is appearance work,” said the mother of three young children. “It is something that I can do when they are in school, and it enables me to continue to practice law.” Burgess, daughter of retired San Francisco Superior Court Judge Albert Wollenberg, made a two-minute special appearance in an insurance case at a Pittsburg, Calif., court. After setting up a mediation session, she jumped into her SUV and headed for Hayward for another duck-in, duck-out appearance. Hundreds of California attorneys do what she does for a living. Others supplement their income making special appearances in what is becoming an increasingly common subspeciality. It’s not without its risks, however. Recent case law says specially appearing attorneys can be on the hook for malpractice, and there’s always the chance of running in to judges hostile to lawyers who aren’t intimately familiar with the facts. Attorneys like Burgess are generally paid a flat fee of $50, $75 or $100 for routine or perfunctory appearances, depending on whether it’s a status conference, an order to show cause hearing or a settlement conference. Depositions usually run $50 an hour. “Appearance attorneys are attorneys who love to go to the courtroom,” said Gary Hoffman, of Hoffman & Pomerantz in Lawndale, near Los Angeles. His is one of several California law firms whose only practice is keeping a stable of ready-to-roll attorneys throughout the state and dispatching them at a moment’s notice. “The whole idea is that we’re acting as associated counsel,” said Hoffman, who often makes appearances in Northern California courts. “We’re deputized to work for the attorney of record on that day.” He said firms such as his are gaining a foothold in the legal profession as managing partners realize that young associates are better used doing discovery work in the office than making a long trek for two-minute court appearances just to get a continuance or trial date. The law “has become like other industries,” Hoffman said. “Outsourcing is becoming really common.” PERILS OF PINCH-HITTING These pinch-hitting attorneys, however, may face a peril that could cause some to pause before rushing to their next stand-in court appearance. A year ago, the Fourth District Court of Appeal held that attorneys who specially appear still owe a duty to the client, and can’t shift potential malpractice liability to the attorney of record. “By appearing at a hearing in a case in which the attorney has no personal interest, the attorney is obviously representing the interests of someone else, someone who is a party to that action,” wrote Justice Art McKinster for a unanimous three-judge panel in Streit v. Covington & Crowe, 82 Cal. App. 4th 441. “The client is such a person; the client’s attorney of record is not. We conclude that an attorney making a special appearance is representing the client’s interest and has a professional attorney-client relationship with the client.” In a concurring opinion, Justice James Ward was more to the point in suggesting that special appearance attorneys better make sure they know what they’re doing. “I believe that our system of legal representation is better served by a bright-line rule: When an attorney stands before the court and announces ready for Jones, the world can count on it — that attorney represents Jones, and that attorney will be held responsible if he or she commits malpractice or violates rules of professional conduct,” Ward wrote. Robert Ray, of Robert Ray & Associates, which sends lawyers throughout the state to make appearances, said that has been his assumption all along. “We had always assumed that your client was the actual client and not the attorney,” said Ray, whose firm is based in Highland, near San Bernardino. “The decision makes it clear that that is the case.” He says his firm makes sure the lawyers they send out are fully prepared for the hearing. The Law Office of William Gregory Polster is a San Diego-based firm that traces its rent-a-lawyer practice back to when the Legislature in the early 1990s enacted fast-track procedures for courts. The idea was to move cases through the system faster. Polster said San Diego was a pilot program jurisdiction before full fast track was imposed statewide. Its judges began to set regular hearings for updates or settlement talks. “The courts were heavy-handed at first,” he said. “It was Mussolini getting the trains to run on time.” “At that time, my practice was a high-volume collection practice,” Polster said. With fast track, he had to make many more court appearances. He saw others similarly situated and the light bulb went on. “I told the lawyers I would cover all their appearances for a month for a flat fee,” he said, figuring he had to be in court as well. “By doing this I was able to generate enough money to hire another attorney to make these appearances for me and the other lawyers’ appearances, too,” he said. Thus his business was born. Ray has more than 600 attorneys making over 100 appearances a day statewide. 800-POUND GORILLAS One of Polster’s clients is David Cook, a San Francisco lawyer whose practice is commercial collections. That means many court appearances, for many clients in multiple jurisdictions. “Even the smallest cases wind up in “fast track land,” Cook said. “A guy like Polster gives us legs,” said Cook, of Cook, Perkiss & Lew. “It gives me the ability to deliver the 800-pound gorilla to the debtor’s door.” “In good military parlance, it projects power,” added Cook, who says scaring debtors into paying their bills is a big part of collections. Judith Murakami has run Attorneys to Go out of a Riverside office for five years. Technology made it possible. “All you need is a fax machine, a computer and a telephone,” Murakami said. And, of course, a list of attorneys scattered throughout the state. Those are easy to find, according to Ray. “We probably get 10 resumes a week from people who want to work for us,” he said. “We get the resumes and screen the attorneys and determine if that’s the kind of person we want working for us.” Most of those who apply are independent-minded and don’t enjoy the billable-hours straitjacket, he said. “You can bet they’re lone wolves,” Ray said. Stuart Friedland started Alter Ego, a Palos Verdes firm that dispatches lawyers, seven years ago. He has lawyers “with impressive resumes” making appearances. He also uses new admittees. “We would use a new admittee in a limited capacity, for example, getting a continuance,” Friedland said. But some judges are not happy seeing experienced attorneys before them on cases that aren’t theirs, much less freshly minted lawyers. Contra Costa County Judge John Allen, who Burgess appeared before, said his concern is that the attorney understand the case, otherwise “it’s a waste of an appearance.” San Francisco Presiding Judge Ronald Quidachay, who before his election was a law and motion judge for two years, said problems could arise in settlement talks and trials. But otherwise he has no quarrel with special appearance attorneys. “I don’t care who shows up as long as who shows up has reviewed the papers and can argue the case in law and motion,” Quidachay said. Special appearance lawyers who go before San Francisco Law and Motion Judge David Garcia aren’t likely to receive reproval. But they won’t win much respect, either. “It’s not a particularly intellectual practice, is it?” Garcia asked.

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