No one likes to get bad news, especially if that someone is paying tons of money for services aimed at protecting the interests of an individual or business. Even the best lawyers will lose motions or entire cases either because the facts are bad for their client, the law is against them, or for numerous other reasons. When a client receives a bad outcome during a representation, their first instinct might be to fire the lawyer that represented them when that bad outcome materialized. However, unless the lawyer really messed up in a representation, clients should not automatically terminate counsel.
Earlier in my career, I was working on a high-stakes matter involving complicated legal issues. My adversary, along with being a nice guy, was also a very competent lawyer. He prepared solid papers for a motion that we argued, and he definitely presented the best arguments for his client. I also did my best when preparing papers so that my client advanced the best arguments for why they should win on a given issue.
Eventually, my adversary lost the motion. This was not due to insufficiencies with my adversary’s legal arguments. More likely, as explained in the court’s decision, this was due to the court deciding to rule on the matter using reasoning that neither of us had spent too much time briefing in our papers. I spoke to my adversary after the decision came down, and I could tell that something was brewing on his end, since he was delaying taking the next steps in the case, and he was being evasive about what his client was thinking about how to proceed with this matter.
Out of the blue one day, I got a notification that my adversary had been fired from the case and that a new lawyer was taking over. I was frustrated by this development, since I had created a solid amount of rapport with my original adversary, which could go a long way toward reaching a resolution in the matter, and I would need to start from scratch with new counsel. I also knew that when a lawyer takes over a case from predecessor counsel, they have a tendency to make big moves to show to the client that it was correct to terminate prior counsel and hire the new lawyer.
Eventually, the new lawyer filed papers in the case. Those papers were solid but not stellar. I wonder how much time the new lawyer needed to spend to get up to speed on the matter and replace the understanding of the case that was simply known by predecessor counsel since he had been involved in the matter since its inception. It was not altogether clear to me that the new lawyer did any better job than predecessor counsel, and there were definitely inefficiencies associated with having new counsel parachute into a case that had been pending for some time when the substitution of counsel was made.
As the old saying goes, you shouldn’t change horses midstream, and as detailed in prior articles, there are many issues with replacing counsel in the middle of a representation. Besides inefficiencies, it typically does not look good, since this can indicate turmoil with a litigant, and this could also be a sign of weakness. Moreover, substituting counsel almost always means that a client will need to pay more money in legal costs than if they kept their original counsel. This is because replacement counsel will need to spend time reviewing case materials and getting up to speed on the happenings of a representation.
This is not to say that clients should never replace the lawyers that they originally hired to handle a matter. There are, indeed, very good reasons to substitute counsel in a variety of circumstances. Some lawyers are just bad, and they should be replaced with more competent counsel who can better represent a client. Moreover, clients might not have a solid working relationship with some lawyers, and they might be better off working with counsel with whom they have a better connection. However, client should rarely substitute counsel merely because they received a negative decision, since the outcome could have been due to circumstances beyond the lawyer’s control, and this does not necessarily mean the lawyer cannot adequately represent a client.
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@example.com.