When things go awry in baseball, the manager brings in a relief pitcher. When the same happens in a lawsuit, the client may choose to hire different counsel. Just as in baseball, replacement counsel may be walking into a tense and difficult situation.
Unlike at the beginning of a representation, there may be little to no grace period for replacement counsel to evaluate the case and determine an appropriate strategy. By the time replacement counsel comes in, the case is not a blank slate and may have urgent emerging issues or deadlines. It is possible that the client will view the prior counsel as having made errors or having pursued a less-than-effective strategy, leading the client to make a change.
When facing these challenges, there are a number of steps for replacement counsel to consider to limit risk and to effectively represent the client. Below are four tips when acting as replacement counsel.
Assess the Situation
As noted above, a client considering replacement counsel might not be pleased with the direction of the representation. While sometimes the change is made for a glaring reason—like an attorney missing a deadline or making an error—the reasons may be even more nuanced. By considering what went wrong, the new attorney can gain insight into the client’s perspective on the matter and take steps to avoid the issues that led to problems with the first attorney.
For example, a breakdown in the client-attorney relationship could be caused by a breakdown in communication. By understanding what went wrong, the new attorney can thus learn how to best manage and meet client expectations for the matter. If the client expected more frequent updates from the first attorney, replacement counsel can take steps to avoid those same issues.
In addition, finding out what went wrong can help the attorney understand what needs to be fixed first. One of the first tasks for replacement counsel is often putting out fires. If discovery is going poorly or there was an adverse ruling, then the first order of business for the new attorney may be damage control.
Finally, if it is unclear what went wrong with the first attorney’s work, then potential replacement counsel may need to take a hard look at the representation. It could be that the client has unreasonable expectations or simply did not like the answers given by prior counsel, even if they were legally correct. Acting as replacement counsel in such situations may create the same sort of problems as it did for the first attorney.
Don’t Forget Client Intake Procedures
Although the attorney’s representation may start in the middle of a lawsuit or some other fire drill, it is helpful to remember that it is still a new representation for the replacement attorney’s law firm. Because replacement counsel is often under a time crunch, it can be easy to forget to follow the firm’s client intake procedures and instead immediately start working on the case.
However, law firms have client intake procedures for a reason. In some situations, there may be conflict issues that need to be resolved. The firm may have a standard required engagement letter to govern the scope of the representation as well as other issues. Even where the representation begins in a hurried manner, taking the time to follow the firm’s standard procedures for opening matters can help reduce the overall risk.
Study the Entire File
One challenge for replacement counsel is that there can be a learning curve before all of the background facts and issues are fully understood, especially where the matter has been pending for a long time. Attorneys are often preoccupied with the pressing issues in the case but may not always immediately appreciate everything that has transpired up until the time replacement counsel was retained.
Accordingly, many attorneys taking on a new representation midstream find it helpful to take the time to read through the entire file as soon as possible, even when the immediate next steps in the case may seem clear. Besides helping the attorney understand the file better, such a review can confirm that the prior attorney took all necessary steps earlier in the case. Replacement counsel may discover other issues that are usually addressed early on in a representation, for example, whether the prior attorney fully evaluated the option of a counterclaim or third-party complaint, or whether the prior attorney filed a jury demand. In some cases, steps that the first attorney perhaps should have taken earlier in the case can become the second attorney’s problem if not remedied.
Moreover, a fulsome review of the file can help the attorney identify any potential conflict issues that may not be apparent upon initial review.
When a client switches attorneys mid-representation, one of the biggest risks is that deadlines will get missed or forgotten in the transition. Accordingly, as one of the first tasks for replacement counsel, it is helpful to independently identify any deadlines that may need to be addressed.
Replacement counsel may expect that the client or prior counsel will identify any imminent deadlines. However, the risk can be severe if the replacement counsel does not separately confirm whether there are any other deadlines or that the reported deadlines have been calculated correctly. This practice can also help replacement counsel determine whether to seek extensions to any deadlines, as in some cases courts may be willing to grant extensions following the substitution of counsel.
As with any new matter, attorneys tapped as replacement counsel are often eager to get started. However, before attorneys can save the day for the clients, it is helpful to take some extra steps to limit the risks.
Shari L. Klevens is a partner at Dentons US in Atlanta and Washington and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons’ global insurance sector team.
Alanna Clair is a partner at Dentons US in Washington and focuses on professional liability and insurance defense. Shari and Alanna are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance” and the upcoming 2019 edition of “Georgia Legal Malpractice Law.”
Dentons DC associate Craig Giometti contributed to this article.