Can My Lawyer Go To Court Without Me?

Can My Attorney Go To Court On My Behalf? Or Do I Need To Be Present?

May 15, 2019

Contributor: Adam Justinger

Over the course of a criminal case, there are several different hearings. These hearings can include initial appearances, arraignments, motion hearings, preliminary hearings, and dispositional conferences, to name a few. Ultimately, after all of these hearings, there may also be a trial. If you are unfamiliar with the legal system, the idea of attending a hearing might be frightening. However, in North Dakota, an attorney may be able to attend these hearings on your behalf without you having to be present. The number and types of hearings your attorney can attend on your behalf depend upon the severity of your criminal case.

How Can My Attorney Go To Court On My Behalf?

The North Dakota Rules of Criminal Procedure govern the practice and procedure in all criminal proceedings, with a few exceptions. The purpose of these rules is to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay. Rule 43 of the Rules concerns the Defendant’s presence. The Rules require the defendant to be present at the initial appearance, arraignment, plea, every stage of a trial, and sentencing. Although Rule 43 requires a Defendant’s presence, it also provides exceptions to this general rule and allows the defendant to not be present at certain hearings. However, it is very important to recognize the court must approve the absence before a Defendant’s appearance is deemed to be waived.


Under Rule 43, a misdemeanor offense or infraction is an offense that is punishable by fine or by imprisonment for not more than one year or both. For a Defendant to waive their appearance, there are several things that need to occur. First, the Defendant must consent to the waiver in writing. Further, the Defendant must be advised of their rights under Rule 5(b)(1) and (3). Additionally, they must be advised of their rights under Rule 11(b). If the Defendant consents in writing and is properly advised of his/her rights, the Defendant does not need to be present at the arraignment, plea, trial, or sentencing. Essentially, for misdemeanor offenses or infractions, it is possible that a Defendant may never need to go to court if they provide written permission to their attorney to appear on their behalf. However, the Defendant always has the right to be present at every hearing.


A felony offense is punishable by imprisonment for more than one year under Rule 43. For a Defendant to waive their presence for a felony, there are certain conditions that must be followed. First, like for misdemeanors, the Defendant must consent to the absence in writing. Further, the Defendant must be advised of their rights listed in Rules 5(b)(1) and (2) and Rule 5(c). If all of these conditions are met and the court approves the absence, a Defendant does not need to be present with his/her attorney at the preliminary hearing, arraignment, and entry of a not guilty plea. Thus, there are several hearings that the Defendant must be present at, such as the trial and sentencing.

Miscellaneous Hearings

There are several other hearings that a Defendant does not need to be present at with his/her attorney. The Defendant does not need to be present at a conference. An example of a conference would be a misdemeanor dispositional conference. Another hearing a Defendant does not have to be present at is a hearing on a question of law. Finally, a Defendant can waive their presence at a hearing for a sentence correction under Rule 35. Again, it is important to remember that the judge must permit the absence of the Defendant. If the judge does not permit their absence, the Defendant must be present at these hearings.

In Conclusion

If you hire an attorney, there is a chance you will not have to be in court if certain procedures are followed, depending on the charge. Criminal charges and the criminal law process in general can be complex. If you are facing criminal charges, seeking legal representation may be in your best interest. If you have a criminal issue in North Dakota, please do not hesitate to call our Criminal Defense Team at SW&L Attorneys in Fargo at 701-297-2890.

This article is only meant to provide general information and does not constitute legal advice.