Side Piece
Does anyone else sometimes feel like the “side piece” when a client who is represented by another attorney comes to see you to take over the representation? Almost like you’re the mistress the client is trying to bed. So that begs the question, what is the best way to accept a new client who has fired their previous attorney and is trying to acquire you as their next? Hmmm. Regardless of experience level or time in the practice, I feel that this is always a prickly and uncomfortable situation.
In review of our North Carolina Rules of Professional Conduct, I see a lot of what duties we hold to clients upon withdrawal or termination of representation. However, I don’t see much of what duties we have to one another upon the termination or withdrawal of a client from representation. Do we have a duty to call the fired attorney and let them know they got fired? Write a note or a text? Do we have a duty to say nothing as, of course, we have the privilege with which to contend? What is the right or proper thing to do?
It seems that the Rules of Professional Conduct don’t really address what if anything we should do in the instance a client comes to us wanting us to take over the representation from another attorney. Our rules do mention, in broad strokes, how we are supposed to treat one another. What I could find in the Rules was located in the Preamble:
13] Although a matter is hotly contested by the parties, a lawyer should treat opposing counsel with courtesy and respect. The legal dispute of the client must never become the lawyer’s personal dispute with opposing counsel. A lawyer, moreover, should provide zealous but honorable representation without resorting to unfair or offensive tactics. The legal system provides a civilized mechanism for resolving disputes, but only if the lawyers themselves behave with dignity. A lawyer’s word to another lawyer should be the lawyer’s bond. As professional colleagues, lawyers should encourage and counsel new lawyers by providing advice and mentoring; foster civility among members of the bar by acceding to reasonable requests that do not prejudice the interests of the client; and counsel and assist peers who fail to fulfill their professional duties because of substance abuse, depression, or other personal difficulties.
Broad strokes, right? It does say that we are supposed to behave with dignity, right? I did some more digging and found that the American Bar Association issued Guidelines for Conduct in a June 2020 online article, titled “Lawyers Duties”, https://www.americanbar.org/groups/litigation/policy/conduct_guidelines/lawyers_duties/ (last accessed April 25, 2023). The first part of the article was completely dedicated to listing specific guidelines to how we attorneys were supposed to treat one another. The list was very long, approximately thirty-one enumerated duties. Not one of the enumerated guidelines in this article talked about what to do in these instances.
Maybe it is written somewhere what is the best thing to do in these instances. Some attorneys may not see what the big deal is. Who cares, right? It happens all the time! Clients fire and hire lawyers all the time. The rules permit them to do so capriciously and without cause. It’s just the way it goes, right? So why should we put any thought into those instances? Let me tell you why. Because ours is a profession of honorable and refined persons. We are supposed to treat one another with dignity and respect. And as such, we owe it to one another to at least try to make those instances when a client “disses” their former lawyer less awkward. But, I have to confess that I haven’t gotten my own protocol down for times like this. Clearly, I will need to since I have yet to find any real authority on how to do this. So, I figured I would try the following….thoughts?:
Step #1: Get Some Intel
Find out from the client using a good consult interview or good client questionnaire if they had a previous attorney and who that was. You can’t know if you need to implement this protocol unless you know there have been others.
Step #2: Encourage the client to resolve their issues with their current attorney.
Wait, did I just write that? This may sound counterintuitive but most of my colleagues with whom I talk to about this say the same thing. Most of the time, it is not in the best interests of the client to switch counsel, especially if they are knee deep in resolving a legal matter. This is because not only of the time that is lost with getting a new lawyer up to speed but also the added expense for the client. Unless a review of the client’s case reveals considerable dysfunction, my second step is to encourage clients to stay with their current counsel.
Step #3: The Talk
If the client is adamant about the change, direct the client to have a discussion with their current counsel PRIOR to them hiring you. They should inform them of their decision to make a switch, so it is the client, not you, who must inform the previous attorney of the change in representation.
Step #4: Waive Away
Require the client to sign a waiver allowing you to talk to their previous attorney if necessary. This will allow you to reach out the attorney and personally let them know you are taking over the representation. In addition, this will help with the transition and allow you to get a better understanding of what dynamics of which to steer clear with the client in the future.
Step #5: Reach Out
This may be the most awkward step, but the whole point of this exercise is to treat successor counsel with dignity and respect as well as leaving the representation of the client with dignity and respect. Isn’t it?
This is one of those posts which is a work in progress, in my book. Thoughts? I would love to hear what others do or don’t do and why. Until next time!
*Image Credit: 9428309 © Olesya Getman | Dreamstime.com