August 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
Second of Two Parts
[Last month's article discussed some of the problems faced by an attorney who is replacing a client's former counsel. This month's article continues that theme.)
When attorney and client part ways midstream, their mutual interests will usually be best served by cooperating in the retention of competent replacement counsel and the smooth transition of representation. Replacement counsel, in contrast, must anticipate perils unique to that role and prepare accordingly.
Expect Transition Problems
Whether motivated by the requirements of RPC 1.16,1 altruistic concern for the client or self-interest (e.g., recovery of a contingent fee or minimizing damage caused by possible malpractice), former counsel should want to fully cooperate in the transition to replacement counsel.
Occasionally, however, former counsel will delay transfer of the client file or create other impediments to a smooth transition in representation, based on the attorney's mistaken belief that the Washington attorney lien statute allows the attorney to hold the client file ransom until the client and replacement counsel resolve the attorney's fee claims. Although the Washington attorney lien statute does indeed extend to the client's papers,2 the client normally owns the client file.
Moreover, RPC 1.16(d) requires, "Upon termination, a lawyer shall take steps to the extent reasonably practicable to protect the client's interests, such as ... surrendering papers and property to which the client is entitled." WSBA Ethics Advisory Opinion 181 further explains that even if a dispute exists over the fees of the prior attorney, "the lawyer cannot assert lien rights if there is any possibility of interference with the former client's effective self-representation or representation by a new lawyer."
Nevertheless, replacement counsel should anticipate that the prior attorney may resist cooperating with replacement counsel in obtaining the prompt transfer of the client file based on an erroneous belief regarding the client file.
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