TLIE Top Tip: Should I Stay, or Should I Go, Part I
TLIE Top TipsWhen a lawyer changes firms, clients face a dilemma–do they stay with the current firm or follow the lawyer to the new firm? The lawyer’s duty to the client in this dilemma includes more than simply reminding the client that the client gets to choose his lawyer. The lawyer must also tell the client that a new agreement with the new firm is required (Part I), and the lawyer must inform the client about any outstanding obligations the client may still have under his existing agreement with the old firm (Part II).
Professional Ethics Committee Opinion 700 tells us that a new legal services agreement consistent with the TRPC and other Texas law is required. This is not only because the lawyer-client relationship is contractual, but because informing the client of the basis and rate of pay is but one facet of a lawyer’s duty to a client. Preferably, the new agreement should be in writing to reduce the possibility of misunderstanding (and must be written, if contingency-based). The client must also be told that the previous agreement is with the prior firm only. While the new agreement may be on different terms, the lawyer should be aware that the client may consider any new terms to be changes made during the representation, which, in an enforcement action, raises a presumption of unfairness and requires the lawyer to prove that the new agreement was fair and reasonable to the client. If there are new terms that can be considered mid-representation modifications, then the the client must be given a reasonable opportunity to seek the advice of independent counsel.
