Don’t Be The Third Lawyer For The Same Client On Any Case

A recent post on Legal Practice Pro, “When Substituting In, Beware The Pile Of Crap” warned about a risk faced by any lawyer who substitutes into a case in place of another lawyer: getting sanctioned for the unethical or bad lawyering of the predecessor.  This is surely one of the bigger risks when you take over for someone else.  But there are other things to think about when asked to “sub in,” particularly if there have been more than one lawyer who previously represented this client in the same matter.

I’m thinking in particular of the problem or “unworthy” client.  Anytime you are asked to get involved in a case mid-stream, and there have been a succession of multiple lawyers before you who have either quit or been fired, I’m going to bet it’s the client, not the lawyers, who is the problem.  Clients can be unworthy for a number of reasons: they fail or refuse to pay, or to pay within a reasonable time, they have unrealistic expectations of their lawyer, they ask their lawyer to act unethically, or some combination of these.

There is no question that many clients have legitimate reasons for seeking new counsel.  Maybe the lawyer is unskilled, unethical, spread too thin, or just an ass to work with.  But, if the same client could not make it work with two prior lawyers, and he or she is looking for a third, or a fourth . . . I say an alarm should sound: beware.

If you hear but cannot heed the alarm, and find yourself in the position of lawyer #3 (or 4 or 5 . . .), there are a couple of things you can do to reduce the risk that your engagement will end badly.  First, learn and know the file before the substitution is signed and you take over.  This can and arguably should include a heart-to-heart conversation with your predecessor(s).  As uncomfortable as this can be, it’s worth the effort.  Second, get a healthy retainer up front (assuming the matter is not a pure contingency fee case).  Most important, though, take the time to have an in-depth conversation with your new client and pay particular attention to whether his or her expectations about your involvement and the outcome of the case are realistic.  Unless your predecessors were first class idiots, avoid making promises or representations to the effect that you can guarantee a better outcome.  Because you simply can’t.

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