The Risk Manager, Summer 2004

Clients have the option of firing their lawyer at will. Often before making that decision they will consult another lawyer – in effect becoming that lawyer’s prospective client. This raises the question of the professional responsibility of the consulted lawyer in terms of the client and the client’s current lawyer. The Philadelphia Bar Association considered this situation in its Ethics Opinion 2004-1 (Feb. 2004).

Points covered in the opinion are:

1. There is no duty to notify existing counsel before meeting with the dissatisfied client. In fact, to do so without the consent of the dissatisfied client would breach confidentiality requirements.
2. There is no obligation to reconcile the dissatisfied client and existing counsel.
3. The lawyer may accept the retention as substitute counsel even though existing counsel has not been notified of his termination. The prospective client, however, should be informed about discharged counsel’s potential claim for fees and costs and the impact of this on the new representation and any recovery realized in the matter.
4. The lawyer may contemporaneously have the client sign an engagement letter and assist the client in preparing and sending a letter discharging the existing counsel.
5. Lawyers in these situations should inform themselves on substantive law issues such as intentional interference with contractual relations and other claims that may be implicated by the particular facts of the matter.

Often accepting a client under these circumstances is in the best interest of all concerned. Nonetheless, there are risk management considerations beyond any substantive law claims the discharged lawyer may have. Client screening is one of the most effective ways to prevent a malpractice claim and a client switching lawyers is often a signal that the client is difficult and more likely to make a malpractice claim if things don’t go well. Some things you should consider before accepting a dissatisfied client are whether you have difficulty reaching a fee agreement; have other lawyers rejected the matter; and most important of all, whether time limits that apply to the matter are too close to permit adequate investigation and preparation time.

One final thing to consider before accepting the matter is whether the scope of the engagement will include any malpractice by the discharged lawyer discovered during the representation. If malpractice is discovered, the client must be notified. If, however, you do not want to become involved in a malpractice claim, be sure to limit scope to preclude that aspect of the matter.