Don’t Fight Your Substitution Out of a Client’s Matter
LACBA Update, January 2002

By Ellen A. Pansky of Pansky & Markle. Pansky is a member of LACBA’s Professional Responsibility & Ethics Committee. The opinions expressed are her own.

Despite the existence of reasonably clear ethics rules, some lawyers don’t understand their duty upon being notified that they have been substituted out of a client’s matter. For some reason, attorneys persist in the notion that they may fight being substituted out of a matter, and are free to engage in efforts to solicit the former client to return. Some attorneys go even further, threatening to bring suit for interference with contract simply because the client has decided to seek other legal representation.

Rule 2-100 of the Rules of Professional Conduct governs the circumstances under which an attorney may communicate with a represented party. Generally, the rule absolutely precludes communication, direct or indirect, with a party whom the attorney knows to be represented by a lawyer where the communication addresses the subject matter of the representation. However, the rule also contains several express exceptions. One of these specifies that an attorney may communicate with a party who initiates the contact to seek advice or representation from an independent lawyer. In the discussion section following the rule, there is further clarification: "Subparagraph (C)(2) is intended to permit a member to communicate with a party seeking to hire new counsel or to obtain a second opinion. ..." Thus, an attorney who is contacted by an individual who is already represented for the purpose of discussing whether that party wishes to substitute new counsel or simply to obtain a second opinion as to the adequacy of representation being provided by the current counsel is free to speak with the party without the consent of the current counsel. Those attorneys who believe that they must be contacted before the client may obtain advice from the prospective attorney are mistaken.

This concept is implicitly incorporated into the recent holding of the State Bar Court Review Department in In Re Phillips (Oct. 10, 2001) Daily Journal D.A.R. 10779. There, the Review Department reiterated the seminal rule set forth in Fracasse v. Brent (1972) 6 Cal.3d 784, 790-791 to the effect that the client has the absolute right to discharge counsel at any time with or without good cause. The Review Department disagreed with the contention that, once contacted by successor counsel, an attorney must await express client consent before forwarding the client’s file. Citing to its previous case, In the Matter of Sullivan (Review Dept. 1997) 3 Cal. State Bar Ct.Rptr. 608, 612, the State Bar Court also noted that when successor counsel advises of the change of counsel, the file should be prepared for delivery, even before a substitution of attorney form is forwarded.

Rule 3-700(D)(1), California Rules of Professional Conduct, requires an attorney to provide to the client all files, papers and property to which the client is entitled. The California Supreme Court and the State Bar Court have made it unequivocally clear that an attorney who delays forwarding the file to successor counsel and who refuses to acknowledge that successor counsel has been retained by the client acts at his or her peril. However unhappy a lawyer may be that the client has decided to seek alternate representation, it’s inappropriate to subvert the client’s decision by refusing to provide the client file or by refusing to sign a substitution of attorney form. Under no circumstances should the attorney telephone, visit or otherwise directly contact the client to attempt to persuade the client to discharge successor counsel and return to him or her.