The past several months have been unusual for attorneys and clients. For one, the ongoing pandemic has given some clients the space to review their legal portfolio and audit their own needs. Some clients are deciding to change counsel, whether for strategic or cost-based reasons. In other instances, attorneys may find themselves joining a representation in media res because another lawyer has gotten sick with COVID-19, or because a colleague is spread too thin and needs someone else to step in.
Taking over a client representation from other lawyers can create risk for the replacement lawyer. Whereas often at the beginning of a representation there is time to evaluate the case and determine an appropriate strategy, that time may not exist in taking over an existing representation, depending on the circumstances. There may be urgent emerging issues or deadlines. If the client has switched representation because of a suspected error by the prior lawyer, that can also have an impact on strategy, on client management and on the potential risk that the lawyer could compound or share in the liability for the alleged error.
When facing these challenges, there are steps for replacement counsel to consider to limit risk and to effectively represent the client. Here are four practical tips if you’re a lawyer stepping into an existing matter.
Remember to administer client intake procedures
Although the lawyer’s representation may start in the middle of a lawsuit or other client-driven task, it is helpful to remember that it is still a new representation for the replacement lawyer’s law firm. Accordingly, it is important to implement the firm’s client intake procedures.
Law firms have client intake procedures for a reason: because they help manage representations and reduce the likelihood of exposure. For example, client intake procedures often identify any conflict issues that need to be addressed and resolved. Moreover, law firms may require their lawyers to send engagement letters to govern the scope of the representation and confirm other issues as a prerequisite for a new matter. Indeed, sending an engagement letter can help limit risk down the line.
Sometimes replacement counsel is under time constraints. A client may have decided to make a sudden change, or there could be a looming deadline. In the face of such pressure, it can be easy to ignore or forget to follow the firm’s client intake procedures and instead immediately start working on the case. Skipping this step, however, can create significant risks for the replacement lawyer and firm if they fail to follow their normal intake routine. Taking the time to implement the firm’s standard procedures for opening matters can help reduce the overall risk when acting as replacement counsel.
Taking over a matter can be hectic. Replacement counsel may expect that prior counsel or the client will identify any imminent deadlines so that the lawyer can put out any fires. Once the smoke clears, however, there is a risk that the new lawyer could miss some other long-pending deadline. Thus, if the replacement counsel does not separately confirm whether there are any additional deadlines or that the reported deadlines have been calculated correctly, the risk can be severe.
Accordingly, after implementing the intake procedures, one of the first tasks for replacement counsel is to independently identify any immediate or long-term deadlines that may need to be addressed. This practice can influence replacement counsel’s decision to seek extensions to any deadlines, among other strategic decisions.
Evaluate the circumstances
Sometimes a new lawyer is brought in after a client becomes dissatisfied with their current representation. The reason for a switch could be obvious—like an adverse ruling or an error—but other times, it could be more nuanced or could have nothing to do with the first lawyer’s performance (such as, for example, if the first lawyer becomes ill). By considering why the client is looking for other counsel, the new lawyer can gain insight into the client’s perspective on the matter and take steps to avoid the issues that led to any client dissatisfaction with the first lawyer.
For example, if the end of the prior lawyer-client relationship was caused by a breakdown in communication, the new lawyer can learn how to best manage and meet client expectations. Understanding what, if anything, went wrong can also help the lawyer decide what needs to be fixed or addressed first.
It may not always be clear what went wrong. Accordingly, the replacement counsel may need to assess the situation. 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 sound. In such a situation, replacement counsel may encounter the same issue and could consider whether taking on the representation makes sense.
Review the matter file
It may be difficult or time-consuming for new counsel to learn all of the background facts and issues of a case, especially where the matter has been pending for a long time. Thus, many lawyers taking over a file will 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 lawyers understand the file better, such a review can confirm that the prior lawyer took all necessary steps earlier in the case. A fulsome review can help the attorney identify any potential conflict issues that may not be originally apparent. Moreover, replacement counsel may discover other issues that are usually addressed earlier in a representation, for instance, whether to pursue a counterclaim or third-party complaint, or whether to submit a jury demand.
Although lawyers who find themselves acting as replacement counsel are often eager to get started, it is helpful to consider these four steps to limit the risks of taking over mid-representation.