487
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| ABA LEO 487 (6/18/19) (A successor lawyer replacing a contingent fee arrangement lawyer must advise the client of the former lawyer’s claim for fees against any recovery (under a quantum meruit standard, a termination amount specified in the previous contingent fee arrangement, or some other arrangement). Such a claim arises if a client fires the contingent fee lawyer without cause or the contingent lawyer justifiably withdraws. Those standards vary by state, but lawyers' justifiable withdrawal includes examples such as an “obligation to withdraw due to unforeseen conflict of interest . . . unanticipated costs and expenses of litigation . . . client refused to comply with discovery obligations.” The successor lawyer may include such an explanation of the predecessor lawyer's right to a fee in the new contingent fee arrangement or separately. Such successive representations do not implicate simultaneous representation provisions such as ABA Model Rule 1.5(e) fee division provision, including that Rule’s requirement that all counsel assume “joint responsibility” for the matter – which “entails financial and ethical responsibility for the representation as if the counsel were associated in a partnership." Although the client in this situation involving successive contingent fee representations “cannot be exposed to more than one contingent fee when switching attorneys,” ABA Model Rule 1.5(a) "supports the conclusion that client consent is required to divide the fee at the end of the case.” Thus “successor counsel may not disburse fees claimed by that [predecessor] counsel absent the client’s consent.” Successor counsel may or may not represent the client in dealing with predecessor counsel, which should be specified in the fee agreement. Among other things, successor counsel undertaking that task “cannot charge the client for work that only increases the successor counsel’s share of the contingent fee and does not increase the client’s recovery.” Given successor counsel’s interest “in a portion of the proceeds,” the arrangement must also include the client’s informed consent to that conflict. Both successor and predecessor counsel must protect client confidences, and predecessor counsel may not communicate directly with the former client “without successor counsel’s consent under Rule 4.2.” Successor counsel must hold in trust any disputed amounts. |