Changing Attorneys Mid-Case

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Parties to a lawsuit may change attorneys in the middle of a case either because the party fires the attorney or because the attorney withdraws from the case. However, whether such a change will have positive or negative consequences depends on several circumstances. If you are thinking about firing your attorney or if you suspect that your attorney might withdraw from your case, it is important for you to understand your rights and the potential consequences on the outcome of your case.

When a Client May Choose to Change Attorneys Mid-Case

A client's right to discharge an attorney is absolute, with or without cause, and it may be exercised at any point prior to the conclusion of a case. The right exists even if the attorney rendered valuable services or the client owes the attorney money. Although a client doesn't need to have a reason, common circumstances for discharging an attorney include:

  • An attorney's conflict of interest
  • Differing case strategies or personality conflicts
  • A change in the pleadings or parties of the case
  • A change of the court hearing the case
  • Expanded legal needs

When an Attorney Must or May Withdraw Mid-Case

An attorney must withdraw from a case if his or her representation of the client would violate the rules of professional conduct or if the attorney's mental condition materially impairs his or her ability to represent the client. Otherwise, an attorney may withdraw from a case only for valid reasons, and only if it is shown that the client's interests won't be adversely effected. Valid reasons include:

  • Conflicts of interest
  • Client consent
  • Differing case strategies
  • A client's failure to cooperate, communicate, or fulfill obligations
  • Personality conflicts
  • A client's failure to pay attorneys fees
  • A client's unethical, fraudulent, or criminal activity
  • An unreasonable financial burden

How to Change Attorneys Mid-Case

Regardless of the reason for the change of attorneys in the middle of the case, the attorney must follow the local procedures for notifying the court where the case is pending and obtaining that court's permission for the change. If the client discharged the attorney, the court will allow the change. However, if the attorney is attempting to withdraw from the case, the court may, depending on the circumstances, order the attorney to continue representing the client, particularly if it is shortly before trial or if the change would be unfair to the client or the other parties.

Attorney's Continuing Duties After Discharge of Withdrawal

As soon as an attorney-client relationship is terminated, the attorney loses the actual authority to act on behalf of the client. However, the attorney also has a number of continuing obligations to the client.

  • Protecting the client's interest: Generally, the attorney must explain the potential consequences of terminating the relationship to the client, help find another lawyer to handle the matter, and return the client's property and papers to either the client or the client's new lawyer.
  • Complying with deadlines: If the client is facing an imminent deadline, the attorney may be required to obtain the court's permission to extend the deadline or continue representation in order to comply with the deadline.
  • Protecting confidential information: The attorney has a continual obligation to protect client confidences even after representation ends.
  • Treating the client fairly: The attorney is prohibited from using information obtained through the relationship to take unfair advantage of a client.

What Happens With Attorney Fees and Costs

When there is a change of attorneys in the middle of a case, the former attorney is generally entitled to compensation unless he or she has acted improperly. Unless a court determines that an attorney is entitled to the contractually agreed rate, the attorney is usually entitled to recover for the reasonable value of the services provided. In contingency fee cases, the former attorney may be entitled to a percentage of attorneys fees from the award.

What Happens if an Attorney Acts Improperly

An attorney who improperly withdraws from a case or acts improperly after termination of the client relationship is subject to professional discipline by the state's bar association. Moreover, a court may order an attorney to compensate the client for any damages caused by the improper conduct. So, for example, if an attorney discloses confidential information related to the former client or otherwise acts unethically, the attorney risks both professional discipline and a civil action by the former client seeking damages..

What if the Attorney was Appointed by the Court or is a Public Defender

An indigent criminal defendant that is represented by a court-appointed attorney does not have the right to demand a different lawyer unless the defendant establishes that the attorney is unfit to serve. Thus, although a defendant's right to fire an attorney is still absolute, there is a risk that the court will not appoint a new lawyer to represent the defendant.

What Happens to the Attorney's Work

If attorneys are changed in the middle of the case, the former attorney's work is transferred over to the client or the client's new lawyer. Moreover, unless a continuance is granted by the court, the change in attorneys does not in any way alter the client's case. Deadlines and scheduled court dates remain the same and all communications should be sent to the new lawyer.

Although the former attorney has a duty to provide the client or new lawyer with property and documents, internal law-firm documents, or "work product," is considered the property of the former attorney - not the client. For example, an attorney is not required to disclose memorandum analyzing the firm's success or lack thereof in handling the client's case.

Grounds for Continuance

In order to postpone the case when there is a change of attorneys in the middle of the case, the court must grant a continuance. The decision rests in the discretion of the court and will likely be influenced by several factors such as the circumstances surrounding the change in attorney, the effect of delay on the other party, and the public interest in an efficient judicial system. In both civil and criminal cases, a court is more likely to grant a continuance to a client if the change in counsel is justified and if additional time is needed to obtain a new attorney or allow the new attorney time to prepare for trial.

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