Five Quick Tips to Help Reduce Risks for Replacement Counsel

It is within a client’s rights to choose the counsel which they believe will be most effective in dealing with their case. In some cases, a client may engage replacement counsel when an ongoing matter is not going as well as they had hoped. Whatever the client’s issues with their prior counsel, be they miscommunications, questionable management, or just an inadequate fit, the client may expect the replacement counsel of “fix” everything.

Changing counsel can be a favorable decision for clients who think their former attorneys were not doing a good job. However, this situation can create risks for the replacement counsel. There could be several possible concerns, ranging from the previous attorney having a different objective than the client, to them having made certain mistakes that may amount to legal malpractice.

Replacement counsel faces several challenges and risks when entering a case with many problems, so we’re going to talk about five tips that can help replacement counsel reduce those risks.

Assess the Damage Already Done

Risks may be reduced by first identifying any pending problems and taking steps to protect the client. This may involve resolving the problems or simply advising as to recourse against prior counsel.

Lawyers who take on problematic representations without finding solutions to the problems may find themselves a part of those problems. Because lawyers are liable for any damages caused by making errors, they have a duty to eliminate damages if possible. This can create risks, because if the replacement counsel comes in after their predecessor already made a mistake and they fail to correct that mistake, they could be liable for failing to do their duty.

In some cases, the representation may simply be irreparably damaged, in which case the client’s only option might be a legal malpractice claim against their former counsel. In those situations, the safest course of action for replacement counsel is to refer clients to counsel that specializes in legal malpractice claims.

Analyze the Current Situation Carefully

Replacement counsel may find themselves in a difficult situation because they don’t have any historical knowledge on the matter. They could be left to own their predecessor’s mistakes where there is ambiguity about who did what and when.

There are steps that the successor can use to better understand everything that has transpired, what challenges they are facing, and what can be done to overcome them. Most of the time a good way to avoid any misunderstandings is to go over a detailed timeline of the previous representation with the client.

A good idea for replacement counsel is to provide the client with written explanations of the challenges they have to face and possible solutions, as well as an assessment of the chances of success and the estimated costs. By doing this from the beginning, the lawyer and their client can have a better understanding of the challenges and risks they face going forward.

Respect the Standard Client Intake Procedures

Replacement counsel also has to follow the standard client intake procedures and as with any representation, drafting an engagement letter or a fee contract is always a good idea. Most lawyers also include a detailed scope of the representation in the engagement letter, as well as whether they will handle any malpractice claim regarding previous counsel.

Replacement counsel may also find screening procedures useful for gaining helpful information. For example, a lawyer can learn about the former attorney-client relationships by screening and interviewing the proposed client. If they find that the client has had three other lawyers on the same matter and found them all to be lacking, being the fourth one could bring too much risk.

Another important thing to do is check for conflicts. A lawyer may avoid problems down the line by including their predecessor in the conflicts check as a potentially adverse party.

Be Aware of All the Deadlines

Lawyers generally take steps to ensure that they meet deadlines, but the process can be more complicated and more important when taking over a case with several problems and then missing a deadline.

To prevent this, replacement counsel can verify any pending deadlines by consulting with the client and their predecessor, by reviewing the docket, asking the clerk, as well as speaking with opposing counsel. When they have all the information, they can enter it in a calendar system that will help them keep track of all upcoming deadlines.

Create Documentation of Client Authority and Settlement Communications

Failing to properly document a file can present a higher risk for replacement counsel, as they may not have all the relevant information and their file may be subject to scrutiny from their predecessor in any subsequent actions. Replacement counsel should document in writing all material decisions and discussions relating to the representation that they have with the client.

Successor representations can create different risks for counsel because of their unique nature and the relationship with the client may require a different approach. However, these representations can be safe and profitable for lawyers who address all possible issues.