Part II of the Breaking Series: 50 Ways to Leave Your Lawyer
“Make a demand, Stan”
“Write off the fee, Lee”
“What does this cost, Ross?”
In Part II of my Breaking Up series, I will discuss how to leave your lawyer….if you must! The title of this blog post is a bit of misnomer as I won’t indulge every fantasy you may have about canning your counselor.
As with your change in management, to transition to new legal representation it helps greatly if you have a copy of your retainer agreement to review first. Some lawyers and law firms would have you believe that you must defer your decision to seek representation elsewhere until the term of their retainer expires which is simply not true. Unlike other contracts, legal retainers are terminable at will. As such, if there is a specific termination notice required by your legal retainer it is really a formality as (a) your association can hire and use more than one lawyer or law firm at a time and (b) the attorney should only be performing services requested by your association.
Some boards prefer to have new counsel send prior counsel notice of that termination and request for the turnover of any active files. Others prefer to do it themselves, either to thank the attorney for his or her past service or to outline the litany of complaints that led up to the departure decision. Once the decision is made to leave, it is important that the notice of that decision be very clear that work must stop other than on litigation matters which might be jeopardized before new counsel can substitute in. On non-crucial matters, I have sadly seen attorneys on the way out the door engage in a flurry of last minute billing activity so it is important to ask for a complete accounting of what is owed at the time notice of termination of representation is given.
It is also important to remember that if your board chose to have an attorney defer fees and advance costs on litigation matters (this is often the case with collection matters), you will need to pay those deferred fees and costs prior to those files being turned over to the association and its new counsel. However, there are times that new counsel can move forward without having to obtain files from former counsel; this may be particularly true with non-litigation matters where new counsel is less than confident in a predecessor’s work product. Maintaining a legal relationship because you don’t want to pay those deferred fees even
while the matters are not being adequately handled would be shortsighted at best.
Litigation files may have what is called a charging lien on them. A charging lien is a type of attorney’s lien under which an attorney can eventually claim a portion of any money paid to the client as a result of a judgment, settlement or verdict for unpaid legal fees and costs owed to that prior attorney. It is essential to advise subsequent counsel of any fee arrangements, particularly contingent fee arrangements, made with prior counsel as those arrangements could impact strategic decisions with regard to your pending legal matters as well as limit your new counsel’s options. Lastly, you may be surprised and very disappointed to learn that prior counsel did not handle things as efficiently or properly as possible, resulting in damages to your association and a potential malpractice claim against former counsel. It is then up to your board to decide whether or not you wish to spend time and resources pursuing a claim to make you whole.
As with other transitions, the best lawyers understand that the end of a client relationship is not always permanent and that a gracious and professional departure is in the best interests of all parties.