There are many reasons why a client decides that one attorney is out and another is in. It can be personal, professional, or even irrational. Whatever the reason, if your client wants to make a swap, make sure you meet all of the requirements for an effective substitution of counsel in California.
When both attorneys and the client agree to an attorney swap, they have to file their consent to substitution of counsel with the clerk of the court in which the proceeding is pending or enter it in the court’s minutes. CCP §284.
Under this three-party agreement,
- the client substitutes the new attorney for the former attorney,
- the new attorney agrees to represent the client, and
- the former attorney consents to the substitution.
The attorney being substituted into the case must send notice of the substitution to the “adverse party” (CCP §285) as well as any other attorneys of record and unrepresented parties (see CCP §1010). If a party hasn’t yet appeared in the case, you may need to serve that party personally or find another method of service. See, e.g., CCP §1011. But if a party’s default for failure to appear has been entered, it’s not necessary to give the notice. CCP §§1010, 1014.
To cut down on the number of documents required, the written substitution of attorney is often phrased as both a notice of substitution of attorney as well as the agreement and consent to the substitution. This means it’s unnecessary to prepare a separate, formal notice. In practice, notice of substitution is usually served by simply mailing a copy of the substitution. CCP §§1012-1013(a). Just be sure that you title the substitution so that its purpose is clear (e.g., Substitution of Plaintiff’s Attorney).
Newly-substituted attorneys should always file the original substitution with the court clerk along with a proof or acknowledgment of service on the other parties. If the substitution was made by oral consent entered in the court’s minutes, serve and file written notice, with proof of service on the parties. See CCP §§284-285, 1010.
Note that, until the new attorney gives notice of a change in representation, the adverse party must recognize the former attorney unless the adverse party waives the notice requirement. CCP §285.
Attorney swapping is common is shouldn’t necessarily be taken as a reflection on your abilities or interpersonal skills. Whether you’re the former attorney or the new one, handle substitutions with professionalism, and make sure to follow the rules.
For more on changing representation during suit, including a handy sample notice and substitution of attorney form, turn to CEB’s California Civil Procedure Before Trial, chapter 4.
Other CEB blog post your may find helpful:
- Expertise by Association
- Interviewing a Prospective Client: Know What to Ask
- It’s Not Over Until the Withdrawal is Filed
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