In some representations, there comes a time when either a client or a lawyer decides that the client would be best served by changing counsel. Normally, the decision to change attorneys is not taken lightly, because clients and attorneys typically build a substantial amount of rapport, and this can be impacted by substituting lawyers. Even though clients may wish to change lawyers during some representations, and new lawyers may be willing to take on the client, attorneys and clients alike should think carefully before agreeing to substitute counsel.
Inefficiencies
Depending on how far into the representation prior counsel was, it might be inefficient for an attorney to parachute into a representation. Incoming counsel will invariably need to review materials, speak with relevant parties, and conduct other steps in order to ensure they are apprised of the status of a matter. This is in addition to any of the tasks that need to be performed as part of the representation. Such prep work can increase the amount of time an attorney bills to a file, and this can impact a client’s bottom line. Of course, there are ways to be more efficient about obtaining background information about a file, but there will usually be some work and lag time before incoming counsel can be apprised of a matter.
Expectations
Attorneys are usually very busy professionals who have dozens of open matters and numerous obligations to multiple clients. Lawyers typically need to triage matters to ensure that the most pressing files get attention immediately. In addition, lawyers may not reach out to a client if there is no update about a matter, and there can often be long stretches during which matters sit without much action on either side.
Sometimes, clients may be dissatisfied with their lawyer simply because they have unrealistic expectations about the responsiveness of lawyers and the work they perform. Indeed, I have spoken to several clients seeking new counsel over the years, and after hearing stories about their lawyers and reviewing materials prepared by counsel, it seemed that existing counsel was doing a decent job on the file. Of course, some lawyers drop the ball, and those attorneys should be replaced so clients can get the best representation possible. However, stakeholders should evaluate the services rendered by a lawyer with the standard services that are rendered by attorneys with a similar background and in a similar case.
Image To The Other Side
Another reason why stakeholders should be wary about changing counsel is because this may not look good to the other side. It is important in certain transactional matters and litigation to project an image of strength and unity to other parties in the matter. This might be helpful when it comes time to resolve the matter and may impact decisions about the value of a case and whether the matter should be settled earlier or fought to the end.
If a client changes lawyers, this might convey to the other side that there is a weakness in the client’s case or they may be less prepared to continue prosecuting a matter. In addition, lawyers develop connections over the course of a representation, and this will be terminated if lawyers change during the representation and clients seek new counsel. Clients and lawyers should consider how a substitution of counsel will be perceived by the other side when they make decisions about whether a new lawyer should represent a client in a matter.
Attorneys’ Liens
Attorneys’ liens are claims predecessor counsel has on the recovery in a case if they are subsequently terminated and a settlement or other resolution provides money to a client. The law on attorneys’ liens varies from state to state, and liens usually only apply to contingency cases, but lawyers are usually entitled to the reasonable value of the services they rendered on a file. Attorneys’ liens can have significant consequences on a case, and even after a lawyer passes away, the lawyer’s estate may have a claim to part of the recover obtained by a client for which the lawyer once worked.
Depending on the status of the case and the expected payout, attorneys’ liens may not be much of an issue in assuming the representation of prior counsel. Moreover, predecessor counsel may be willing to negotiate the lien easily before or after a recovery is obtained which can lessen the headaches associated with attorneys’ liens. However, in cases in which attorneys’ liens may be implicated, lawyers need to carefully evaluate whether it makes sense to resume the representation of another attorney.
All told, clients are of course free to hire new counsel to handle matters, and lawyers are free to choose which cases they want to handle and which they turn down. However, attorneys and clients should keep a few things in mind when it comes to changing attorneys.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at [email protected].
