July 2015 Bar Bulletin
When Clients Leave: The Perils of Replacement Counsel - and How to Manage Them
By Brian J. Waid, Jessica M. Creager and Anna C. Kitson
First of Two Parts
When the attorney-client relationship sours, the client and the original attorney usually share a mutual interest in the client's retention of capable replacement counsel. For example, in a contingent fee representation, the recovery of any fee by the attorney left behind may depend on successful completion of the case by replacement counsel. Or, if the first attorney arguably committed malpractice, competent replacement counsel may succeed in mitigating or preventing damages, thus reducing the chance of a legal malpractice claim ever being asserted.
Original counsel also has an ethical obligation under RPC 1.16(d) to "take steps to the extent reasonably practicable to protect a client's interests" upon termination of the relationship. Cooperation with replacement counsel thus also helps avoid later questions about whether the original counsel fulfilled his professional responsibilities at withdrawal.
One might thus presume that the first attorney would eagerly assist the client in finding a competent replacement, help new counsel get up to speed and do everything reasonably possible to facilitate the transition. However, in practice, the old adage "no good deed goes unpunished" often prevails. Replacement attorneys may thus encounter unanticipated perils and unwarranted hostility from their predecessor counsel. Recent Washington cases highlight some of these perils.
Expect To Become a Witness
Replacement counsel commonly become witnesses in follow-on litigation, and may be called upon to testify on issues such as the reasonableness of the client's decision to settle the underlying matter, the amount of the client's damages, or other issues related to potential legal malpractice and breach of fiduciary duty claims against original counsel.
Flint v. Hart, for example, established that a client may settle his underlying claim without interrupting causation relative to any legal malpractice claim against former counsel, as long as the client's decision to settle was "reasonable."1 Evidence that the client relied on the advice of replacement counsel provides a ready means of proving the "reasonableness" of the decision.2
Flint also established that the client can recover "mitigation" expenses incurred to reduce or avoid the damage caused by original counsel's malpractice as damages in the malpractice lawsuit.3 Mitigation expenses frequently include the fees and expenses incurred with replacement counsel. The client may thus call upon replacement counsel to testify that replacement counsel's fees and expenses were indeed reasonable and necessary to mitigate the client's damages.
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