Switching lawyers: Ways attorneys can manage risk when taking over in the middle of a case

The situation arises frequently where a lawyer is asked to take over a matter mid-representation. It could be that the lead lawyer has a family emergency. Maybe the client wants to take things in a new direction or even thinks that their current lawyer has committed errors in the representation. There is nothing inherently unethical about a lawyer deciding to replace an existing lawyer in an active case. However, this scenario can increase the risk of potential ethical violations if the transitions are not managed properly.

Compared to taking on a new matter, where there is often time at the beginning of a representation to assess the issues, plan and map out a detailed case strategy, that time may not exist in taking over an existing representation. Further, if the client has switched counsel because the client believes the former counsel made mistakes, that can impact how the case should be managed going forward.

Replacement counsel can take several steps to minimize risk while effectively representing a client in an ongoing matter.

Check dates and plan accordingly

One of the first agenda items that attorneys should have when taking over an active matter is to calendar all dates. Did the client file an answer in a timely manner? Is there an upcoming court conference? Are depositions scheduled? Go over these details with the client. If an attorney is taking over the case internally from another attorney at the same firm, discuss these details with the prior attorney. Review the court docket. Attorneys should reach out to attorneys actively representing other parties in the matter, if possible. Even opposing counsel is typically willing to identify upcoming court dates, be amenable to reasonable extensions, or give a brief "lay of the land" with attorneys who are recently hopping onto a matter.

Consider the larger picture

Attorneys should also spend time reviewing the case with a wider lens than just marking the upcoming deadlines. Did the prior attorney miss an important deadline? Was there crucial discovery that was not conducted? Outside of imminent deadlines, conferences, and dates, attorneys may not want to assume that prior counsel met all prior deadlines or addressed all important issues in the case. If the replacement counsel does not separately confirm whether there are any additional deadlines or that the reported deadlines have been calculated correctly, the risk can be severe.

In certain situations, a client is seeking a new lawyer after becoming dissatisfied with the current representation. The reasons for this can be numerous. It could be an obvious issue, like missing an important deadline or an adverse ruling. Other times, though, the reasons are more nuanced. There could have been communication problems. Or, the reasoning may have little to do with the prior lawyer's representation, such as when the prior lawyer is simply retiring.

The main point is that a replacement attorney should consider what happened and identify the reasons for the transition. It may not always be clear what went wrong. If they are unclear, attorneys should try to ask the prospective client more questions. This way, the new lawyer can glean the client's perspective on the matter--to avoid the issues that led to client dissatisfaction with the first lawyer and to ensure that he or she can provide adequate representation in conformance with ethical obligations.

If it appears that the client had unreasonable expectations of the prior counsel, or was insisting on a course of conduct that seemed ill-advised, replacement counsel should consider those issues seriously and whether they should take the matter on at all. New counsel may encounter the same issues with the client.

Accordingly, replacement counsel should spend time independently identifying issues that need to be addressed. Acting at the time that the case is handed over to the replacement attorney is good practice for case strategy, timeliness, and to help comport with ethical obligations owed to the client or prospective client.

Review the file

Attorneys are busy. It can sometimes be difficult to find the time to review the file--particularly when the prior case file is dropped off in multiple, unorganized bankers' boxes. However, this step is important to identify all of the background facts and issues of a case, and to ensure deadlines are fully triaged.

Replacement counsel may discover other issues that are usually addressed earlier in a representation, for instance, whether to pursue a counterclaim or third-party complaint, or whether to submit a jury demand. Further, a fulsome assessment can help the attorney identify any potential conflict issues that may not be originally apparent.

Do client intake

Time spent on client intake procedures is just as important when opening an already-active matter as it is with a brand-new matter. Law firms have client intake procedures in place because they help manage representations, assess potential conflicts, and reduce the likelihood of exposure for the firm. Although it may appear too time-consuming to slow down and thoroughly conduct client intake in a rapidly moving case, skipping this step can create significant risks for the replacement lawyer and firm if not followed.

For instance, some law firms may require their lawyers to send engagement letters to govern the scope of the representation and confirm other issues as a prerequisite for a new matter. Sometimes, in the frenetic rush of jumping feet-first into an active matter, that step may be overlooked. But complying with a firm's engagement letter proceedings is advisable, particularly because these letters can serve to memorialize the scope of the representation in writing. This can assist attorneys by mitigating potential risk later on if issues arise. Indeed, the letter could describe any atypical terms of the representation or instructions from the client, given the state of the matter.

By considering the above steps, lawyers acting as replacement counsel can help ensure that the transition is a smooth one.