Shari Klevens, left, and Alanna Clair, Dentons (Courtesy Photo)

There are many reasons why a client may switch attorneys in the middle of a representation. The client may be dissatisfied with the prior attorney or simply may want to pursue a different strategy. In other circumstances, an attorney may retire or move to a new firm that gives rise to a conflict of interest, meaning she or he can no longer represent the client. Regardless of the reason, the attorney hired to take over the matter enters a situation where there can be a very short learning curve and even immediate deadlines.

Unlike at the beginning of the matter, replacement counsel often may feel that they do not have the luxury of taking the time to get to know the file and to formulate an entire case strategy. Instead, replacement counsel may be forced to "learn on the fly" and may not be able to undo decisions made by prior counsel that could have a significant impact on the case.

In the face of those challenges, attorneys acting as replacement counsel may consider taking a number of steps to limit their risk and to ensure that there are no miscommunications with the client. Below are four tips for replacement counsel to consider at the outset of the representation.

Get the Lay of the Land

As noted above, one common reason for a change in counsel is where the client is less than pleased with the direction of the representation. Sometimes the prior attorney may have made a clear error. However, in many circumstances, the reasons for the client's dissatisfaction may be more nuanced and may not even constitute a departure from the standard of care by the prior attorney. By considering what happened, 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, many problems in the attorney-client relationship stem from a breakdown in communication. For example, 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 happened 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. Acting as replacement counsel in such situations may create the same sort of problems as it did for the first attorney.

Utilize Client Intake Procedures

Although the attorney's representation may start in the middle of a lawsuit, it is still generally a new representation for the attorney's law firm. Thus, while replacement counsel may feel the need to take urgent action, problems can arise where attorneys fail to follow their firm's typical client intake procedures.

However, 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.

Perform a Thorough Review

One challenge for replacement counsel is that it may seem that there is insufficient time to immediately review the entire file to fully appreciate all of the background facts and issues, especially where the matter has been pending for a long time. However, in order to determine the best strategy going forward, it is often necessary to understand everything that has already occurred in the case.

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.

Know the Deadlines

One of the biggest risks for replacement counsel 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. Thus, in addition to working with prior counsel to identify the deadlines, it is helpful for replacement counsel to review the docket, review the deadlines set forth in the local rules, obtain any scheduling orders, and consider whether there are any other important deadlines (such as possible statutes of limitations for claims not yet asserted). 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.

For attorneys asked to serve as replacement counsel, there can be a sense of excitement to jump into a heated dispute and attempt to achieve the best possible result for the client. However, without taking appropriate steps, serving as replacement counsel can also create some risk.

Shari L. Klevens is a partner at Dentons US and serves on the firm's US Board of Directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons' global insurance sector team, and is co-author of "California Legal Malpractice Law" (2014). Alanna Clair is a partner at Dentons US and focuses on professional liability defense. Shari and Alanna are co-authors of "The Lawyer's Handbook: Ethics Compliance and Claim Avoidance."