What to do when replacing your attorney

Even when you’ve done your research, found an attorney and hired that attorney, occasionally you may find the need for a new attorney.

This change can arise because your attorney wasn’t the right fit (it happens), or you moved, your attorney moved, your attorney has retired or your attorney has died (we only think we’re immortal). So, what happens then?

Calling it quits

To terminate your representation by an attorney, you simply need to notify the attorney that you no longer require their services. You don’t have to give a reason, but it’s nice to let them know if it’s because you’ve moved or some other reason unrelated to their services.

If you want to explain any other reasons, you can, but you’re not required to. If the attorney was handling a court matter for you, the attorney will need to file a “substitution of attorney” form with the court to name the attorney taking over.

Get your files

First, get a copy of your files from the previous attorney.

The State Bar of California Rules of Professional Conduct requires an attorney to return all client papers and property to which the client is entitled. The complete original file belongs to you. The attorney may copy the file for themselves at their own expense. They cannot charge you for a copy of your own file.

The definition of “files” includes electronic files but not the attorney’s notes or research.

The attorney must return your file to you even if you owe them money. Your file cannot be held hostage, and the attorney, even though you are terminating the relationship, must act in your best interest.

If you have trouble getting your file or any funds you may be owed by the attorney, contact the State Bar of California at 800-843-9053, or calbar.ca.gov

When the attorney dies

If the attorney was part of a law firm or had at least one partner or associate, you can contact the firm to retrieve files as they will still have responsibility for client files. They may have assigned your file to another attorney in the firm, but you are not obligated to remain with that attorney.

If your deceased attorney was a sole practitioner, getting your files may prove a bit more difficult, but there is a method. Generally, the executor of the attorney’s estate (or the trustee) is responsible for notifying clients and returning their files. It is also possible that the local superior court may appoint a practice administrator to handle these duties. In either case, you will be notified and told how and where to retrieve your files.

It’s also possible the deceased attorney’s practice may be sold to another attorney. If that’s the case, it’s likely the purchasing attorney will contact you to let you know they now have your file. Again, you are not obligated to work with that attorney, and if you’d prefer to find another attorney yourself, you can pick up your file and move on.

The new attorney

When you’ve found another attorney they will likely want to see the file of the prior attorney in order to get up to speed on your matter. The new attorney may want to handle things differently—don’t be alarmed. That doesn’t mean your first attorney wasn’t any good. It just means attorneys are people (gasp!) and people often have different opinions and approaches to matters.

The cost

It can be more expensive to switch attorneys. Sometimes (e.g., in situations such as death, relocation, or retirement of the attorney) you won’t have a choice. If you do have a choice, take into consideration that you will likely incur additional fees as the new attorney reviews the prior file and meets with you to discuss matters you may have already addressed with the former attorney.

In estate planning, most attorneys will not amend a trust document drafted by another attorney. Instead, we do what is called an “Amended and Restated Trust.”

That is, we draft an entirely new trust document with the same name and date but a note that it was restated (e.g., “The Jim and Joan Smith Family Trust dated November 3, 1999” as amended and restated on February 1, 2023). The reason for this is that if the attorney amends the trust, the attorney is liable for any errors or omissions in the underlying trust document even though he or she did not draft the trust. The theory is that he or she was the last attorney to touch the trust and, therefore, the last person who had the opportunity to fix whatever problem existed. Most of us can draft a new trust more quickly and efficiently than reviewing and revising another attorney’s trust, particularly if that trust is more than a few years old.

Breaking up is hard to do, but sometimes it’s necessary and/or unavoidable. Knowing how to terminate the relationship and what your rights are can take some of the pressure off.

Teresa J. Rhyne is an attorney practicing in estate planning and trust administration in Riverside and Paso Robles, CA. She is also the #1 New York Times bestselling author of “The Dog Lived (and So Will I)” and “Poppy in The Wild.”  You can reach her at Teresa@trlawgroup.net

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