Does a client's new lawyer have to notify the former lawyer about a settlement?

Plain-English summary

The committee was asked whether, absent a statutory lien, a plaintiff's successor lawyer must notify the predecessor lawyer of the settlement of a claim the predecessor had been handling. It started from the client's right to be represented by counsel of his own choosing and to change counsel whenever he wishes; the new lawyer may not take charge until satisfied that the former lawyer has been discharged, and once retained owes the client undivided loyalty.

The committee explained that, while the traditions of the bar call on lawyers to deal fairly with one another, the superseding lawyer is not responsible for the fees owed to the superseded lawyer, and is not obliged, against the client's wishes, to assist in collecting that fee; doing so would be acting adversely to the client's interests. The successor's only obligation, it held, is to see that the superseded lawyer had, at the time of discharge, such notice of the change as would enable him to protect his rights (EC 2-30).

The committee added two practical points. When first consulted, if the new lawyer believes the client is unfairly seeking to avoid paying the prior lawyer, he may require that those fees be paid and may decline the retainer if they are not, and he may and should use his good offices to urge the client to pay a proper charge. But he may not, without the client's consent, later convey privileged information about a settlement, any more than any other privileged information that comes to his knowledge.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009; the confidentiality duty it applies is now in Rule 1.6, and the obligations surrounding a change of counsel are addressed in Rule 1.16. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must the new lawyer tell the former lawyer about a settlement?

A: Under this opinion, no. Absent a statutory lien, the successor has no duty or right to notify the discharged predecessor of a settlement without the client's consent.

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

A: No. The committee held the superseding lawyer is not responsible for the superseded lawyer's fees and need not, against the client's wishes, help collect them.

Q: Can the new lawyer condition the retainer on paying the old lawyer?

A: Per the opinion, if the new lawyer believes the client is unfairly avoiding the prior fee, he may require payment and refuse the retainer if it is not made, and should urge the client to pay a proper charge.

Background and rules framework

The opinion applied EC 2-30 (notice to a withdrawing or discharged lawyer) against the backdrop of the client's right to discharge counsel and the lawyer's duty of confidentiality. The current New York analogues are Rule 1.16 (declining or terminating representation) and Rule 1.6 (confidentiality of information).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 1.16 (declining or terminating representation)
• NY EC 2-30

Other opinions cited:

• ABA 10 (1926); ABA 130 (1935); ABA Inf. 834 (1965): a lawyer may take over a matter once the prior lawyer has been discharged

See also

• NY State Bar Op. 398: Client files of a withdrawing partner
• NY State Bar Op. 408: Fee division for a co-executor in a wrongful-death case
• NY State Bar Op. 411: Announcements to former-firm clients

Source

• Landing page: https://nysba.org/opinion-383/