Can a lawyer take over a matter from another lawyer the client wants to replace?

Plain-English summary

Opinion 40 (adopted February 3, 1968; addendum issued 1995) addressed Lawyer B, whom a client approached wanting to terminate Lawyer A's employment on a matter and hire Lawyer B instead, and asked whether B may accept the employment.

The Committee concluded that, following ABA Formal Opinion 10, a client has the right to be represented at all times by counsel of his own selection, and a lawyer may properly accept employment on a matter previously handled by another lawyer provided the superseding lawyer has assured himself that the client has given the first lawyer notice that his employment is terminated. The originally engaged lawyer has a remedy at law for any breach of contract arising from the client's termination, but cannot insist that other lawyers refuse the matter merely because he claims a breach; to hold otherwise would deny the client's right to counsel of his own selection. The Committee added that, under ABA Formal Opinions 130 and 63 and ABA Informal Opinion 243, the superseding lawyer is not responsible for the fees due the superseded lawyer, since the amount and method of payment of a fee is a matter of contract to be determined by the courts; but the superseded lawyer is entitled to notice so he can protect his right or lien, citing ABA Formal Opinion 17.

Currency note

This opinion was issued in 1968 under the former Canons of Professional Ethics, before the Colorado Rules of Professional Conduct took effect on January 1, 1993, and before Colorado's 2008 revisions to those rules. A 1995 addendum directed lawyers to Rule 1.16 (declining or terminating representation). The rules governing termination, file transfer, and attorney liens have evolved since then. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer take over a case from the client's prior lawyer?

A: Yes, under this opinion, once the client has notified the first lawyer that the engagement is terminated. The Committee grounded this in the client's right to counsel of his own selection.

Q: Is the new lawyer on the hook for the prior lawyer's unpaid fee?

A: No, under this opinion. The Committee concluded the superseding lawyer is not responsible for the fees due the superseded lawyer, treating the fee as a matter of contract to be resolved by the courts.

Q: Does the prior lawyer get anything before the handoff?

A: Notice. The opinion concluded the superseded lawyer is entitled to notice of termination so he can protect his right or lien.

Background and rules framework

The opinion applied the principle, drawn from ABA Formal Opinion 10 and Canon 7, that a client may choose counsel, and addressed the superseded lawyer's fee and lien through ABA Formal Opinions 17, 63, and 130 and ABA Informal Opinion 243. The 1995 addendum restates the analysis under Rule 1.16 (Model Rule 1.16, declining or terminating representation).

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.16 / Model Rule 1.16 (declining or terminating representation; per the 1995 addendum)

Other opinions cited:

• ABA Committee on Professional Ethics Formal Opinion 10 (client's right to counsel of his own selection)
• ABA Committee on Professional Ethics Formal Opinions 17, 63, and 130 (superseded lawyer's notice, fee, and lien)
• ABA Informal Opinion 243 (superseding lawyer not liable for prior fees)

See also

• CBA Formal Op. 20: Suing or Collecting Unpaid Fees
• CBA Formal Op. 47: One Lawyer Representing Both Spouses in a Dissolution

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_40_2011.pdf