How Does One Relieve an Attorney (and Hire a New One)?
While I would hope that everyone who hires me would be happy with my services, no attorney can make every client happy. Further, I have often left clients extremely satisfied in circumstances in which a previous attorney or attorneys have left them unhappy. However clients discharging or substituting attorneys in the midst of ongoing litigation need to understand that this cannot be accomplished immediately.
To fire one’s attorney isn’t as simple as most litigants expect. Rule 11(b) of the South Carolina Rules of Civil Procedure requires that “[a]n attorney may be changed by consent, or upon cause shown, and upon such terms as shall be just, upon application, by order of the Court, and not otherwise.” Once an attorney has appeared as counsel of record in ongoing litigation that attorney is obligated to provide competent representation until relieved by the court. See Rule 1.1, South Carolina Rules of Professional Conduct (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation”). Further that attorney is required to act diligently in anything that might arise between the time the client indicates a desire to discharge the attorney and the time the court formally relieves that attorney from further obligation. See Rule 1.3, South Carolina Rules of Professional Conduct (“A lawyer shall act with reasonable diligence and promptness in representing a client.”).
This is one reason most attorneys charge much larger retainers to become involved in active litigation than to merely engage in negotiation regarding the same dispute. An attorney involved in negotiations can simply stop working and discharge the client if the client stops paying. If the client becomes dissatisfied with his or her attorney while in the midst of active litigation, that attorney will need to be relieved as counsel before being relieved of responsibility over the matter.
Should you wish to relieve me as counsel (I hope and strive that you won’t) and I have not appeared as the attorney of record in an ongoing case, generally you can retrieve a copy of your file and any unearned retainer within the next business day (assuming I am not ill, on vacation, or in trial). However if you wish to relieve me as your counsel and I am the attorney of record, I need an order relieving me before I will stop work (and billing) and refund any unearned retainer. Further if there is a delay between the time a client wishes to relieve me and the time the court actually relieves me–whether due to a delay in getting the consent order relieving me executed or the opposing party’s objection to my being relieved, you may incur significant attorney’s fees for work I must due to diligently handle ongoing matters. In such situations, if you are employing new substitute counsel, it is best if your new counsel appears and agrees to handle ongoing matters until I am formally relieved.
Should you wish to relieve your current attorney and retain me to handle an ongoing case I will need to be substituted as counsel. Generally if there is no objection from any party and nothing is urgent this can be accomplished through a consent order substituting counsel. However in urgent situations or where one party opposes the current counsel from being relieved, I can file an entry of appearance and the old attorney can either file a motion or a consent order to be relieved as counsel.
While the desire of an unhappy client to have his or her attorney immediately stop work and refund unearned retainer in understandable, clients need to understand that, in ongoing litigation, rules of professional conduct and civil procedure prevent this from happening. In such circumstances, clients are best served by having substitute counsel appear (if they have hired new counsel) and doing everything necessary to expedite the paperwork needed to get their old attorney relieved as counsel.
If you are interested in retaining Mr. Forman as your attorney, you are welcome to click here to contact his office.