Use Of Undisclosed “Appearance Attorneys” In Foreclosure Actions - No "Interloping Counsel" Allowed In My Courtroom, Says Bankruptcy Judge

A recent story in the Sarasota Herald Tribune on The Florida Bar's failure to take disciplinary action against Florida foreclosure mill attorneys for their alleged ethical lapses alludes to one of the practices that is arguably making it difficult to affix fault on the these attorneys - the use of 'coverage' or 'appearance' attorneys:

• Circuit Judge Lee Haworth, chief judge of the judicial district that includes Sarasota and Manatee counties, says he only reports lawyers after he sees a pattern of egregious violations in cases.
  
  "I think one of the problems we have is identifying exactly who it is at fault here," Haworth said. "Lawyer A will file the pleadings, but Lawyer B will show up."
  
  Law firms from across the state also hire local lawyers to represent them at hearings. "The judges are not always face to face with the people who are causing the most problems," Haworth said.

The use of a late-appearing, undisclosed 'appearance' or 'coverage' attorney - was addressed and rejected by U.S Bankruptcy Judge Philip H. Brandt in a 2009 ruling (involving a failed attempt by mortgage loan servicer to establish that it was a "real party in interest" in a homeowner/debtor's Federal bankruptcy proceeding) in this excerpt from the ruling (footnotes in the orginal text omitted, bold text is my emphasis, not in the original):

• The careful reader will have noticed that none of the foregoing rules directly address the situation where the original attorney continues as counsel of record, but another lawyer, not of the same firm, joins for some portion of the representation. But, read together, the requirement of corporate representation and the continuing role of counsel of record preclude interloping counsel. For other attorneys not part of the same firm as record counsel to represent a party, something must be done of record. Customarily, this is accomplished by filing a notice of association, and it is common when lead counsel is distant and the use of local counsel for particular matters in the case will promote efficiency, or the new counsel provides particular expertise. Once the notice of association is served and filed, all parties to the case are aware of the changed representation, and associated counsel receives notice directly of events and filings in the case.
  
  The practice of undisclosed “appearance attorneys” creates problems — other parties (and the court) are sandbagged, and the Debtor, trustee, other creditors, and counsel cannot readily communicate regarding scheduling or substance. In addition to the ramifications of this practice, explored in In re Wright, 290 B.R. 145 (Bankr. C.D. Cal. 2003); Hon. Jim D. Pappas, Simple Solution = Big Problem, 46 The [Idaho] Advocate 31 (Oct. 2003); and Neil M. Berman, Judge, This is Not My Case . . ., Norton Bankr. L. Adviser 3 (May 2004), the lack of formal association could raise questions about the informally-appearing attorney’s authority to speak for, and make judicial admissions on behalf of, the client (the contrary suggestion would not be a promising argument).
  
  While this defect is not dispositive, clarity of representation on the record is important to judicial economy and the orderly representation of other parties. So I will require, absent emergency or significant hardship, formal notice of association to be filed not later than the confirmation of the hearing. And there is no remedy for self-inflicted harm — law firms undertaking distant representations must be prepared to appear or timely associate local counsel who will. As corporations must be represented by counsel in federal court, the consequence of not having counsel of record at hearing will be that the party’s position may be deemed without merit. See LBR 9013-1(e)(1).6 This is the flip side of Woody Allen’s observation that “Eighty per cent of success is showing up” — if you (or your counsel of record if you are a corporate entity) don’t, your chance of success approaches zero.
  
  In short, henceforth only counsel of record or individuals representing themselves will be heard.

It may be that judges presiding over foreclosure actions may want to take a cue from Judge Brandt and stop allowing these foreclosure mill law firms from freely substituting attorneys when handling these cases without imposing some measure of control so that fault can be less difficult to assign when screw-ups occur.

For Judge Brandt's ruling, see In re Jacobson, 402 B.R. 359 (Bankr. W.D. Wash. 2009).