I had the dis-pleasure of appearing in the Milton Town Court a couple of months ago. My client was being charged with some traffic offenses. He lives and works in Vermont. He executed a document I call a "Waiver of Appearance". By doing so, he gave me legal authorization to act on his behalf in court without his personal appearance. This practice is generally accepted in the local courts in which I practice. When my case was called I approached the bench. The judge asked me where my client was. I explained he lives 5 hours away and that I had a proper waiver form. He glared at me. He then said in an angry loud voice, "I don't know why you guys think you can show up without your clients. Look around you. All these defendants are here. They have respect for this court!" It is not often that I get rudely lambasted in open court. My instinct was to argue but common sense dictated a better response. "My apologies to the court your honor", was what I said. Here is what I wanted to say:
"The reason I can be here without my client is that the Criminal Procedure Law in New York provides a procedure for lawyers to appear on behalf of their clients. Regardless of the fact that every other court in Saratoga County understands and accepts this legal practice, my client, by law can designate me, a lawyer, to represent him without his presence in court. This procedure is codified in Section 170.10 (b) which states in pertinent part: "In any case in which the defendant's appearance is required by a summons or an appearance ticket, the court in its discretion may, for good cause shown, permit the defendant to appear by counsel instead of in person". My client was issued an appearance ticket for speeding. In reference to the duly executed waiver of appearance document I have provided to the court, that document indicates that my client not only lives five hours from here, but due to his employment and family obligations he would suffer hardship should this court require a personal appearance. I understand the court is entitled to make a discretionary decision about this matter but I respectfully submit that we have demonstrated "good cause". Furthermore, this court routinely allows plea by mail, completely dispensing with the need for personal appearances in traffic matters and I am frankly a bit confused why you are taking issue with me".
I understand that the Committee on Professional Standards has gone after some attorneys who advertise the fact that their traffic clients do not have to appear for being misleading. It might be wise to include language clarifying that appearances in absentia are permitted only when "good cause" is demonstrated to the court.
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