By Nicole Quintana and James Fogg
Clients frequently change lawyers in the middle of a case or transaction for a myriad of reasons. Sometimes the split is amicable, sometimes it is not. In the worst situations, the change occurs because the original lawyer failed to do what he or she was supposed to do. In those scenarios, it is important for the new lawyer to know what minefields to look out for and how to address potential ethical or legal issues created by the former lawyer for the protection of the client and the new lawyer.
DETERMINING HOW BIG THE MINEFIELD MAY BE
First and foremost, the new lawyer needs to determine what, if anything, the original lawyer did wrong. Conduct can fall into three categories:
- conduct with which the client is unhappy merely because the client and the original lawyer did not see eye-to-eye;
- conduct that is unethical, or violates the Rules of Professional Conduct but ultimately does not affect the outcome of the case; and
- conduct that is negligent because it falls below the standard of care and arguably causes harm to the client.
Unethical behavior may complicate the case — either because it has made the client distrustful or because it enhanced conflict with the opposing party. Perhaps the original lawyer failed to timely communicate with the client updates on, or the realities of, the case or failed to be candid with the court or counsel, which resulted in a loss of credibility. As unfortunate as this maybe, unethical conduct does not always amount to malpractice. The new lawyer, in this scenario, must simply work to right the ship and earn back that trust and credibility.
If, however, the new lawyer identifies conduct that falls below the standard of care — roughly, what a reasonably careful lawyer would have done in similar circumstances — and harms, or potentially harms, the client, then the next steps require assessing the potential for harm and advising the client of any potential claim.
DETERMINING HOW TO BEST NAVIGATE THE MINEFIELD
When a new lawyer suspects or identifies negligent conduct by the original lawyer, she or he is faced with the dilemma of how to handle the situation. Initially, the new lawyer should gather as much information as possible by talking to the client and obtaining a complete copy of the original lawyer’s file. Next, the new lawyer must determine whether she or he can remedy the potential harm caused by the negligent conduct. Can the new lawyer simply file a motion seeking an extension of time or leave to file something out of time in order to fix the problem? Can the new lawyer work around the problem caused by the original lawyer to salvage a deal or a reasonable settlement? Is an appeal the only method of attempting to right the wrong?
Once the new lawyer creates a roadmap for how to best address the negligence (or determines there is no fix), she or he must consider a likely time frame for putting that plan into action because this will inform how to best advise the client.
Attempting to address and fix the problem is certainly preferable. Indeed, if a fix can be implemented quickly, cost effectively and successfully, the client is often best served by pursuing it without wading into the complex scenario of attempting to implement the fix and navigate a potential legal malpractice claim simultaneously.
But lawyers taking over a case cannot ignore the possibility that their efforts may not be successful, that they may cost significant time and money to carry out or that they will not know the results of their efforts before the client needs to address the potential legal malpractice claim. If that is the case, or the new lawyer simply cannot discern how those efforts to fix the problem could affect causation in a malpractice action, she or he must advise the client as to the potential harm caused and how to protect any claim the client may have against the original attorney.
There are a number of complex issues the new lawyer may have to negotiate in attempting to fix the underlying matter and preserve the potential legal malpractice claim. And many times, those issues are in tension with one another. For example, while it is often preferable to wait to file the legal malpractice claim while attempting to mend the problem or get a more certain picture as to the client’s damages, the statute of limitations may not afford such luxury. One of the most important and pressing issues the new lawyer often faces is determining how much time the client has before she or he needs to take action to preserve his or her claim, which is a fact-intensive endeavor that requires in-depth analysis of who knew what about the original lawyer’s actions and when. Where time is limited, the new lawyer must act fast to file or secure a settlement agreement, tolling agreement, or stay after filing.
Even where the client has ample time, counsel handling the potential legal malpractice claim must be mindful of certain issues that could affect the potential claim. Counsel should consider informing the former lawyer about the potential claim and instructing that lawyer to preserve information and to notify his or her insurance carrier, particularly where the client is going to wait months to file.
However, new counsel must be careful in communicating with former counsel, or that lawyer’s attorney, because the assertion of malpractice can result in an implied waiver of the attorney-client privilege. For these and similar reasons, and because the new lawyer can become a necessary witness in the legal malpractice case, it is often best for the new lawyer to get experienced legal malpractice counsel involved after identifying the potential claim. In the least, the new lawyer should discuss these issues and options with the client.
Taking over the worst scenarios can bring out the very best in our profession. While it may present challenges, guiding a client through such troubled times epitomizes the dedication to service around which our profession is built. And with work, forethought, and help, a lawyer taking on a case can help the client navigate even the most perilous of minefields.
— Nicole Quintana and James Fogg are attorneys at Ogborn Mihm.