Tips for Avoiding Risks as Replacement Counsel

When things don’t go as planned in a lawsuit, clients may choose to hire replacement counsel. Unfortunately for the new lawyer stepping in, they may be walking into a pretty tense and difficult situation.

As opposed to the beginning of a representation, replacement counsel may find that there is little to no grace period for them to evaluate the case and come up with an appropriate strategy. By the time they come in, the case may already have urgent issues or deadlines. It’s possible that the client views the prior counsel as responsible for some errors or perhaps they blame them for pursuing a non-effective strategy, which lead to them making the change in counsel.

When dealing with these challenges, there are a few steps you can take to limit risks and effectively represent your client. Here are four tips you should consider when acting as replacement counsel:

  1. Assess the Situation

As mentioned above, a client who is considering replacement counsel is likely unsatisfied with how things are going with their current representation. While the reason for the change may sometimes be obvious – like the attorney making an error or missing a deadline – other times the reasons may be more nuanced. By looking at what went wrong, the new attorney can better understand the client’s perspective on things and take appropriate steps to avoid the same issues that led to problems with the first attorney.

For instance, an issue in the client-attorney relationship might be caused by poor communication between the two. By understanding what went wrong the first time around, the new attorney can learn how to best manage the situation and meet the client’s expectations. If the client was expecting more frequent updates from the previous attorneys, then replacement counsel can ensure that he avoids the same issue.

Additionally, discovering what went wrong with the first representation can help to better understand what should be fixed first. One of the first things replacement counsel have to do is put out fires. If discovery was going poorly or there was an adverse ruling, then priority #1 is damage control.

If what went wrong with the first lawyer’s work is unclear, then replacement counsel should look at the representation. It may be that the client had unreasonable expectations or simply did not like what answers prior counsel was giving them, even if they were correct. Acting as replacement counsel in these situations may lead to the same kind of problems as the first time around.

  1. Always Remember Client Intake Procedures

Although your representation may start in the middle of a lawsuit, it’s always helpful to remember that for you it is still a new representation. Since replacement counsel is often time pressured, they can easily forget to follow their firm’s client intake procedures and instead begin working on the case immediately.

The fact is, however, that law firms have client intake procedures for a reason and sometimes, there may be conflict issues which need to be handled first. The law firm may have a required standard engagement letter which governs the scope of the representation and other issues. Even when representation begins in an urgent situation, taking time to carefully follow your firm’s standard procedures for opening matters may help with reducing the overall risk.

  1. Study Everything in the File

One challenge that replacement counsel has to face is the learning curve before they can understand all the background facts and issues, especially in situations where the matter has been pending for a long period of time. Lawyers are often preoccupied with the pressing issues in a case and they may not always appreciate everything that has transpired up to that point.

Many lawyers who take on a new representation in the middle of a lawsuit take the time to read through the whole file as soon as they can, even if the immediate next steps are clear. Not only will this help them better understand the case, it will also confirm whether the previous lawyer took every necessary step earlier in the case. Replacement counsel may also discover other issues which are typically addressed at the beginning of a representation, such as whether the prior lawyer filed a jury demand. Sometimes, things that should have been taken care of by the first lawyer early in a case become the second lawyer’s problem if they are not remedied.

  1. Identify Every Deadline

A big risk when clients change lawyers mid-representation is that deadlines might get missed or even forgotten. As such, one of the first and most important things replacement counsel needs to do is identify any deadlines which may need to be addressed soon.

Replacement counsel may expect the client or the prior counsel to identify imminent deadlines, but the risk can be severe if they don’t separately confirm if there are other deadlines or if the reported ones have been correctly calculated. This also helps replacement counsel know whether they should seek extensions to any deadlines, as courts may sometimes be willing to grant them after the substitution of counsel.

As with all new matters, lawyers working as replacement counsel will often be eager to start. However, before they can save the day for their clients, it’s often helpful to take some extra steps to ensure they are limiting risks.