Tapped as replacement counsel? Consider the risks.

Acting as replacement counsel is not an easy job. Particularly in the litigation context, a lawyer hired to take over a representation from another lawyer may find themselves dropped into the heat of battle with a steep learning curve and crucial decisions to be made. Replacement counsel often must take the representation as they find it. And because the decision to replace counsel may be precipitated by a bad result for the client, the situation may be challenging.

Nonetheless, the client often expects new counsel to turn things around, no matter how long the odds are. For that reason, managing client expectations is often a crucial first step for replacement counsel. But replacement counsel often does not have the luxury of time when it comes to evaluating the matter and advising the client. The combination of high expectations, high pressure, and little time can be a recipe for increased risk for attorneys.

Attorneys acting as replacement counsel are well-served by paying attention to the essentials in the first days of the representation. Below are four of the most crucial tasks for replacement counsel to help avoid compounding risk.

As noted, a client considering bringing in a new lawyer might not be otherwise 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 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. Or the client may have been angered by an adverse ruling, even if prior counsel did everything possible to avoid that ruling. Acting as replacement counsel in such situations may create the same sort of fraught relationship as the first attorney experienced, if expectations are not reviewed and set.

Although replacement counsel may be preoccupied with imminent deadlines or putting out fires in the early days of a new representation, it is helpful to remember that it is still a new representation. It can be easy to forget to follow the firm’s client intake procedures and instead immediately start working on the case.

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.

It can take any attorney a significant amount of time to review and digest all facts in a case. That is particularly true where the matter has been pending for a long time or for matters that are document intensive. It can be difficult to 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.

Perhaps even more so than other representations, attorneys tapped as replacement counsel can be excited to get started with the hope of rescuing the client from a bad situation. But without taking things one step at a time, a replacement counsel representation can turn dire.