Randy Evans and Shari Klevens, Dentons partners. ()
In most cases clients choose their attorneys carefully, and stick with them until the end. However, sometimes things don’t go as planned, and attorney-client relationships sour due to poor communications, lack of understanding, or perceived mistakes by the attorney. In those situations, clients must hire replacement counsel, hoping they will salvage their case and eventually obtain a successful outcome. The replacement attorney then has a unique opportunity to be a hero and win what might have appeared to be a “broken,” unwinnable case.
Such representations also pose unique challenges and risk. The replacement counsel usually has to overcome whatever issues or errors arose from the prior counsel’s work. The client may be hoping for a miracle that cannot be delivered. There is also a chance that if there is any potential legal malpractice liability arising from prior counsel’s work, that potential liability becomes a shared risk between both the old attorney and the new one. Here are five tips for reducing those risks.
1. Is it Hopeless?
There are some representations where, if replacement counsel takes a hard look, the best option for the client may be to bring a legal malpractice claim against the old attorney. In those circumstances, the replacement counsel may not be able to save the case and may instead refer the client to counsel specializing in asserting and prosecuting 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 compound the error by attempting solutions that have no chance of success.
Because attorneys are liable for damages proximately caused by an error in their rendition of professional services, attorneys usually have an obligation to try to mitigate or eliminate damages. For successor counsel, this creates some increased risk: if successor counsel comes in after a mistake, but fails to mitigate the impact of that mistake, successor counsel could be liable for failing to meet that duty.
Sometimes joining a troubled representation is the equivalent of jumping onto a sinking ship. Consider the example of a successor counsel who fails to serve timely a defendant that a predecessor counsel also failed to serve. Liability likely falls on the attorney representing the client at the time the deadline expires, no matter how negligent the first attorney was in attempting service.
2. What Are You Being Asked To Do?
Most attorneys taking over a troubled representation will take immediate steps to document everything that has happened to date. In this way, successor counsel can protect their own interests by demarcating what issues occurred under predecessor counsel’s watch and can also inform the client regarding what the challenges are moving forward and what can be done to “fix it.”
Writing out the challenges of the representation and proposed solutions will also help bring some clarity to the representation and help the client appreciate the risks, the likelihood of success, and the estimated costs. Successor counsel should be mindful of overpromising to the client. By suggesting to the client that successor counsel can completely right the ship, anything short of that could be viewed by the client as a continuation of the problem that caused the client to retain successor counsel in the first place.
The strategic plan may include the pursuit of a legal malpractice claim against predecessor counsel if appropriate. If successor counsel does not feel comfortable pursuing such a claim, the attorney should refer the client to an attorney who does. Successor counsel can also take appropriate steps to protect and preserve any legal malpractice claim that might exist, by seeking a tolling agreement or assisting with providing notice to predecessor counsel’s legal malpractice insurer.
3. What Can You Learn from the Prior Representation?
Although successor counsel’s role in a representation may be atypical in many ways, successor counsel should still follow standard client intake procedures to help reduce attendant risk. Successor counsel could consider, for example, asking the proposed client about its relationship with its prior attorneys. If the client responds to a screening questionnaire by indicating that it has had four predecessor attorneys on the same matter and that each of them failed to obtain the result that the client wanted, then being the fifth such attorney may bring too much risk in that the client’s expectations may be unreasonable.
Another important screening procedure is to check for and document conflicts. Some replacement counsel will include the predecessor counsel in the conflicts check as a potentially adverse party. Even if there is no situation in which successor counsel would bring a plaintiff’s legal malpractice claim, successor counsel may take positions and approaches that cause counsel to become a witness in a subsequent action adverse to the predecessor counsel.
Just as with any other representation, replacement counsel can use the engagement letter to document precisely what the attorney is being asked to do — and what tasks the replacement counsel is not charged with. This will help protect the attorney if the client eventually decides to bring a legal malpractice action against the original counsel.
4. What’s the Next Deadline?
Beginning a representation as successor counsel sometimes feels like catching up from behind. However, it is critical that successor counsel identifies and documents all pending deadlines in the matter. Of course, attorneys should always take the steps to meet deadlines, but that requirement becomes even more important in the successor counsel context, where it takes on a whole new dimension.
5. Have There Been Settlement Offers?
Documenting offers to settle received from opposing counsel and authority to settle provided by the client helps reduce the risk of failing to respond to an offer that expires or of accepting an offer that the client might later insist was not authorized. In both situations, attorneys face potential liability arising out of the difference between apparent authority and actual authority in the negotiation process.
In successor counsel cases, these risks are higher, because some historical information may be lost in the transition, and because of “second-guessers” in the form of the predecessor counsel, whose interest in a settlement can diverge from the client’s. Thus, clients in this context may require more information in assessing the advice and recommendations they receive.
By considering the above tips, successor representations can be as profitable and successful as typical representations.