United States: Five Tips For Reducing Risks For Replacement Counsel

Last Updated: November 30 2017
Article by Shari L. Klevens and Alanna Clair

Clients have the right to choose the counsel they believe will be most effective in handling their matter. Sometimes, this leads clients to engage replacement counsel when an ongoing matter is not proceeding as planned. Whether the clients' issues with prior counsel lie in miscommunications, questionable management, subpar results or just a less-than-perfect fit, clients may expect replacement counsel to "fix" the problem.

Changing counsel can be favorable for clients who believe their former attorneys were not getting the job done. There can be risks created by this situation for the replacement counsel, however. Indeed, there could be a variety of potential concerns for the replacement counsel, ranging from prior counsel having different objectives than the client to prior counsel having made mistakes and errors that amount to legal malpractice.

Replacement counsel faces a series of unique challenges and risks, particularly when entering a case riddled with problems. Here are five tips for replacement counsel to reduce those risks.

Evaluate Any Damage Already Done by Prior Counsel

Replacement counsel may reduce risks by first identifying and evaluating any problems pending in the matter and then acting to protect the client as appropriate. This may require resolving the problem or simply advising as to recourse against prior counsel.

An attorney who takes on a problem representation without finding a solution may find themselves becoming part of that problem. Because attorneys are liable for damages proximately caused by an error in their professional services, attorneys have a duty to mitigate or eliminate damages whenever possible. This creates some increased risk: if replacement counsel comes in after a mistake made by predecessor counsel but fails to mitigate the impact of that mistake, replacement counsel could be liable for failing to meet that duty.

Some representations may be irreparably damaged, such that the client's only option to save the case (or to recover damages) is a legal malpractice claim against the former counsel. In those circumstances, the safest course for replacement counsel is to refer the client to counsel specializing in legal malpractice claims. For example, if the statute of limitation has expired in a plaintiff's personal injury case and there are no other options, new counsel may only make matters worse by attempting solutions that have no chance of success.

Determine the Current Posture of the Matter

Replacement counsel may face increased risks because they lack historical knowledge regarding the matter. Successor counsel could then be left to own predecessor counsel's mistakes where ambiguity remains about who did what and when.

There are several tools that successor counsel can use to get a clear picture of exactly what has transpired, what the challenges are, and what can be done to "fix" it. Often, the best tool for avoiding misunderstandings in this regard is a detailed timeline of the predecessor representation, confirmed with the client.

Replacement counsel can also provide the client with a written explanation of the challenges of the representation and proposed solutions, including a candid assessment of the chances of success and estimated costs. By providing this information at the beginning, both the attorney and the client will likely have a better appreciation of the challenges and risks of going forward.

Follow Standard Client Intake Procedures

The standard client intake procedures apply equally for replacement counsel taking on a new role. As in any representation, it is important for replacement counsel to document the relationship with the client with an engagement letter or fee contract. Many attorneys will consider including a detailed scope of the representation in the engagement letter, including whether successor counsel will handle any malpractice claim regarding prior counsel.

Screening procedures may also provide helpful information to successor counsel. For example, an attorney can learn about the proposed client's former attorney-client relationships only where the attorney properly screens and interviews the proposed client at the outset. If the client responds to a screening questionnaire indicating that it has had four predecessor attorneys on the same matter, and that it found each of the prior four attorneys lacking, then being the fifth such attorney could bring too much risk.

The conflicts check is another important screening procedure in this context. Replacement counsel may avoid later problems by including predecessor counsel in the conflicts check as a potentially adverse party. Even if successor counsel does not intend to bring a plaintiff's legal malpractice claim, successor counsel may take positions that could lead them to be a fact witness in a subsequent action adverse to the predecessor counsel.

Confirm and Calendar All Deadlines

Though attorneys generally take steps to meet deadlines in all contexts, that process becomes even more important in the successor counsel context, where counsel risks taking over a "broken" case and then missing a deadline.

To address this increased risk, successor counsel can take steps to verify pending deadlines by, for instance, contacting the client, meeting with predecessor counsel, reviewing the docket, asking the clerk, and talking with opposing counsel. When confirmed, all deadlines can then be entered into a calendar reminder system that provides ample notice of upcoming deadlines.

Create and Maintain Documentation of Client Authority and Settlement Communications

The risks of failing to properly document a file can be higher for replacement counsel, who may not have all relevant information and whose file may be subject to scrutiny from predecessor counsel in any subsequent actions. Replacement counsel can consider documenting in writing all material decisions and discussions with the client related to the representation.

Because of their unique nature, successor representations create different risks for counsel. The replacement counsel relationship may require a slightly different approach to a representation, but these relationships can be safe and profitable for counsel who consider and address these issues.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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