The concept of per diem attorneys emerged as law firms recognized the need for flexible staffing solutions. You might be surprised to learn that this practice has roots dating back several decades, with formal recognition and regulation beginning in earnest during the late 1980s.
The formalization of per diem attorney services began when the New York City Bar Professional Ethics Committee issued groundbreaking opinions in 1988. Formal Opinions 1988-3 and 1988-3-A addressed the ethical considerations surrounding temporary lawyering and the agencies that facilitate these placements.
These opinions served a dual purpose: improving the delivery of legal services and expanding opportunities for attorneys seeking flexible work arrangements. The Committee established ethical guidelines that formed the foundation for ensuring these services operated within the bounds of professional responsibility.
Over the years, the scope of per diem work has broadened, and the framework has evolved considerably. While the 1988 opinions laid the groundwork, subsequent clarifications and updates have refined how per diem attorneys operate within the legal ecosystem. For instance, New York State Bar Association's Opinion 1113, issued on January 10, 2017, represents a more updated perspective on the role of per diem attorneys.
The way per diem attorney services work has remained largely unchanged. You, as the attorney of record, are responsible for hiring per diem attorneys—not your clients. The per diem attorney typically communicates directly with you, handling discrete legal tasks that do not require ongoing involvement in the case.
Defining a Per Diem Attorney
A per diem attorney is a licensed lawyer hired on a temporary, as-needed basis to handle legal tasks for another attorney or law firm. The term per diem, meaning "by the day," reflects the nature of their engagement, which is typically on a day-by-day basis.
To become a per diem attorney, one must hold an active law license and be in good standing in the jurisdiction where services will be provided. Additionally, they must maintain professional competence under applicable rules of conduct by obtaining the necessary knowledge and skills for each assignment.
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What Is the Meaning of Per Diem in Court?
In legal practice, per diem refers to the temporary engagement of an attorney to appear in court on behalf of the attorney of record for a specific day or limited timeframe.
Scope of Attorney Per Diem Legal Services
Per diem attorneys provide a defined range of services, addressing various operational needs of lawyers and law firms, within clear professional boundaries.
Here’s what a per diem attorney typical responsibilities include:
- Court Appearances - Covering routine calendar calls, status conferences, motion hearings, adjournments, and other non-substantive or preliminary court proceedings.
- Case Management - Handling scheduling, tracking deadlines, coordinating discovery, and ensuring case milestones are met.
- Depositions: Conducting or defending depositions, often in locations that may be inconvenient for the primary attorney.
- Document preparation - Drafting pleadings, discovery responses, and legal memoranda based on the hiring attorney's instructions and case strategy.
- Document Review - Assisting with large-scale document review projects, identifying relevant materials, and flagging key issues.
- Legal Research and Writing - Analyzing case law, preparing briefs, and developing legal arguments to support ongoing cases.
- Trial Preparation - Organizing exhibits and preparing witness summaries.
- Agency and Administrative Hearings - Representing clients in hearings before administrative or regulatory agencies.
The exact scope of work is always defined by the agreement between the per diem attorney and the hiring attorney or law firm.
Per diem attorneys do not establish independent attorney-client relationships with the firm's clients, nor are they permitted to make strategic decisions about the direction of a case without the hiring attorney's guidance. They must also avoid any actions that could create conflicts of interest with their other professional responsibilities.
Advantages and Disadvantages for Law Firms
Before deciding to hire a per diem attorney, it’s helpful to weigh the advantages and disadvantages. Here’s a clear breakdown:
Pros:
- Flexible Coverage. Easily scale your legal support up or down depending on your caseload.
- Cost-Effective. Pay only for the hours or appearances you need, avoiding the overhead costs associated with full-time employees.
- Specialized Expertise. Gain access to attorneys with courtroom experience or specialized knowledge in niche areas of law.
- Geographic Reach. Engage local counsel familiar with specific courthouses and their regional procedures.
- Scalability. Delegating legal tasks frees you to handle more cases and grow your client base.
Cons:
- Variable Availability. Your preferred per diem attorney may not always be available, especially on short notice.
- Client Relationship. Some clients may feel uneasy if their primary attorney doesn't personally appear, so it's important to explain the arrangement.
- Ethical Responsibility. As the hiring attorney, you remain fully accountable for the per diem attorney’s work and conduct.
Per Diem Attorney Fee Structure
The cost of hiring a per diem attorney typically varies based on several factors, including the type of service, the complexity of the matter, the duration of the assignment, the level of required expertise, and the geographic location.
Per diem attorneys set their own rates and may be compensated through various fee arrangements. Generally, they charge a flat pee per assignment and an hourly rate for tasks such as document review or depositions.
According to N.Y. City 1989-2, the billing structure involving per diem attorneys can take different forms. If the attorney of record wishes to pass the cost of a per diem attorney on to the client, this must be clearly communicated. Many law firms address this in their retainer agreements by categorizing it as an expense.
On the other hand, the bill for services rendered by a per diem attorney may not be included in the legal fee charged by the law firm to its client. Rather, if the law firm wishes to pass it on to the client, it must bill it separately as a disbursement.
When Do You Need One?
A per diem attorney can be invaluable when your practice faces specific challenges. Consider engaging one when:
- You’re scheduled to appear in multiple courts at the same time.
- You need local counsel familiar with regional court procedures.
- You're unavailable due to vacation, medical leave, or personal reasons.
- You’re facing a sudden increase in cases or overlapping deadlines.
- The matter is non-substantive and doesn’t require your direct involvement.
- You're facing time-sensitive filings while committed to other matters.
Is It Worth It?
For many law firms and legal professionals, the answer is a resounding yes. From a business perspective, the flexibility offered by per diem arrangements often proves to be an economically sensible solution. You can accept more cases, knowing you have reliable backup for scheduling challenges.
The decision ultimately depends on your practice needs and growth goals. Consider starting with small engagements to evaluate the capabilities of a per diem attorney.
At Remote Attorneys, we have qualified attorneys with experience supporting clients and law firms across the U.S. You don’t need to spend long hours hiring one, we make it easy by giving you access to our vetted talent pool.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. For specific guidance, it’s best to consult with a legal professional.
