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Law Practice,
Ethics/Professional Responsibility

May 7, 2021

Tips for avoiding risk when acting as replacement counsel

When clients choose their attorneys, they place faith in the attorney to handle the matter effectively and consistently with their expectations. Sometimes, things do not go as planned. There could be unanticipated results, miscommunications, or perhaps just a bad “fit.” In those situations, clients could decide to bring in replacement counsel to continue the representation.

Shari Klevens

Partner, Dentons US LLP

1900 K St NEW
Washington , DC 20006

Phone: (202) 496-7612

Email: shari.klevens@dentons.com

Alanna Clair

Partner, Dentons US LLP

Email: alanna.clair@dentons.com

When clients choose their attorneys, they place faith in the attorney to handle the matter effectively and consistently with their expectations. Sometimes, things do not go as planned. There could be unanticipated results, miscommunications, or perhaps just a bad “fit.” In those situations, clients could decide to bring in replacement counsel to continue the representation.

Although every representation begins with optimism that the chosen attorney is the right person for the job, there can be heightened stakes when it comes to replacement counsel. Sometimes, the client may have unrealistic expectations about replacement counsel coming in to “save the day.”

It can be difficult to come in cold to an ongoing matter and have to make immediate strategic decisions, potentially without full knowledge of the file or the matter history. This is particularly true where there are problems in the case, such as errors made by prior counsel, that could be the impetus for the client’s decision to bring in new counsel in the first place.

Below is a game plan for reducing risk when acting as replacement counsel.

Assess the Damage

An important first step is to identify any problems pending in the matter and to evaluate how the client can best be protected. This may require resolving the problem or, where there were errors, simply advising as to the client’s recourse.

An attorney who takes on a problem representation without finding a solution may find themselves becoming part of that problem. Because attorneys are liable for damages proximately caused by an error in their professional services, attorneys may have a duty to mitigate or eliminate damages whenever possible. This creates some increased risk: If replacement counsel comes in after a mistake made by predecessor counsel, but fails to properly mitigate the impact of that mistake, the client could also seek to hold replacement counsel liable for failing to meet that duty. In other circumstances, the former counsel could seek to defend against a future claim for malpractice by pointing fingers at replacement counsel.

Some representations may be irreparably damaged such that the client’s only option to save the case (or to recover damages) is a legal malpractice claim against the former counsel. In those circumstances, the safest course for replacement counsel is to refer the client to counsel specializing in legal malpractice claims. For example, if the statute of limitation has expired in a plaintiff’s personal injury case and there are no other options, new counsel may possibly make matters worse by attempting solutions that have no chance of success.

Consider the Current Posture

Replacement counsel may face increased risks because they lack historical knowledge regarding the matter. Successor counsel could then be left to own predecessor counsel’s mistakes where ambiguity remains about who did what and when.

There are several tools that successor counsel can use to get a clear picture of exactly what has transpired, what the challenges are, and what can be done to fix it, if anything. Often, the best tool for avoiding misunderstandings in this regard is a detailed timeline of the predecessor representation, confirmed with the client.

Replacement counsel can also provide the client with a written explanation of the challenges of the representation and proposed solutions, including a candid assessment of the chances of success and estimated costs. By providing this information at the beginning, both the attorney and the client will likely have a better appreciation of the challenges and risks of going forward.

Don’t Forget Client Intake Procedures

Just because a replacement matter may begin in the middle of a client’s project or litigation, it is still helpful for the replacement counsel to follow standard intake procedures. Many attorneys will consider including a detailed description of the scope of the representation in the engagement letter, including whether successor counsel will handle any malpractice claim regarding prior counsel.

Screening procedures may also provide helpful information to successor counsel. For example, an attorney can learn about the proposed client’s former attorney-client relationships where the attorney properly screens and interviews the proposed client at the outset. If the client responds to a screening questionnaire indicating that it has had four predecessor attorneys on the same matter, and that it found each of the prior four attorneys lacking, then being the fifth such attorney could bring too much risk.

The conflicts check is another important screening procedure in this context. Replacement counsel may avoid later problems by including predecessor counsel in the conflicts check as a potentially adverse party. Even if successor counsel does not intend to bring a plaintiff’s legal malpractice claim, successor counsel may take positions that could lead them to be a fact witness in a subsequent action adverse to the predecessor counsel.

Calendar Deadlines

Though attorneys generally take steps to meet deadlines in all contexts, that process becomes even more important in the successor counsel context, where counsel risks taking over a “broken” case and then missing a deadline.

To address this increased risk, successor counsel can take steps to verify pending deadlines by, for instance, contacting the client, meeting with predecessor counsel, reviewing the docket, asking the clerk, and talking with opposing counsel. When confirmed, all deadlines can then be entered into a calendar reminder system that provides ample notice of upcoming deadlines.

Document Client Instructions

The risks of failing to properly document a file can be higher for replacement counsel, who may not have all relevant information and whose file may be subject to scrutiny from predecessor counsel in any subsequent actions. Replacement counsel can consider documenting in writing all material decisions and discussions with the client related to the representation.

Because of their unique nature, successor representations create different risks for counsel. For that reason, acting as replacement counsel may, at times, require increased vigilance. However, with an understanding of the risks, acting as replacement counsel can be a great opportunity for lawyers. 

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