Can a new lawyer take over a case from a lawyer the client wants to fire, and can the new lawyer be hired to carry out the discharge?

Plain-English summary

Client A had retained attorney X under a contingent-fee contract to represent A in settling an estate of as-yet undetermined value. A grew dissatisfied with how X was handling the case and wanted to discharge him; X had not named a reasonable fee for the work done, though A had offered to pay a reasonable fee for past services on final adjudication. A asked whether a second attorney, Y, could be employed to discharge X, whether Y could proceed with the estate case after A discharged X and filed notice of the dismissal, and whether Y could accept employment if X refused to withdraw.

On the first question, the Board said Y should not accept employment for the purpose of discharging X; A should discharge X before Y accepts employment, both to prevent unseemly conflicts between lawyers and because discharging X is not the practice of law. On the second question, the Board answered yes. On the third, the Board cited its Advisory Opinion No. 39, which held that a client has the power, if not the right, to terminate an attorney's employment, and concluded that Y may with propriety accept employment from A after A has discharged X and advised him of that fact, because X is then no longer A's attorney.

Currency note

This opinion was issued in 1934, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. A client's right to discharge counsel, the duties of successor counsel, and a discharged lawyer's fee are governed today by separate provisions of the current Oklahoma Rules of Professional Conduct. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific principle mentioned here.

Common questions

Q: Could the new lawyer be hired to fire the first lawyer?

A: No. The Board said the successor should not accept employment for the purpose of discharging the first lawyer; the client must discharge prior counsel himself, and doing so is not the practice of law.

Q: Could the new lawyer take over the case after the discharge?

A: Yes. The Board concluded the successor may properly accept the case once the client has discharged the first lawyer and notified him.

Q: What if the discharged lawyer refused to withdraw?

A: The Board said the client has the power to terminate the employment, so once the client discharges the first lawyer and advises him, that lawyer is no longer counsel and the successor may take over.

Background and rules framework

The opinion did not turn on a numbered Rule of Professional Conduct. It applied the principle, drawn from the Board's Advisory Opinion No. 39, that a client has the power to terminate an attorney's employment, and distinguished the act of discharging counsel (the client's own act, not the practice of law) from the successor's later acceptance of the case.

Citations and references

Rules of Professional Conduct:

• The opinion does not cite a numbered Rule of Professional Conduct; it relies on the client's power to discharge counsel.

Other opinions cited:

• Oklahoma State Bar Advisory Opinion No. 39 (November 1932 State Bar Journal): a client has the power to terminate an attorney's employment.

See also

• Okla. Bar Ethics Op. 61: Taking Over a Defendant From Prior Appointed Counsel
• Okla. Bar Ethics Op. 41: Contingent Fee in Divorce Cases Void Against Public Policy
• Okla. Bar Ethics Op. 57: Advancing Litigation Costs for a Client

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-66/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted February 23, 1934

The Board is in receipt of the following request for an advisory opinion:

"'A' has retained attorney 'X' under the terms of a contingent fee contract, to represent 'A' in the settlement of an estate. The size and value of the estate is as yet undetermined and 'A' has become dissatisfied with the manner and attitude in which attorney 'X' is handling the case and desires to discharge him. "As yet attorney 'X' has failed to name a sum as a reasonable attorney fee for the services already performed by him although 'A' has offered to pay him a reasonable fee for services already performed. Such payment to be made upon final adjudication of the case.

"Question 1: May attorney 'Y' properly accept employment from 'A' for the purpose of discharging attorney 'X'?

"Question 2: May attorney 'Y' properly accept employment from 'A' to proceed with the estate case after 'A' has notified attorney 'X' that he has been discharged and notice of such dismissal filed in the records of the case?

"Question 3: If attorney 'X' refuses to withdraw from the case may attorney 'Y', under any circumstances, properly accept employment pertaining to the case?"

In response to Question 1:

"Y" should not accept employment for the purpose of discharging "X", "X" should be discharged by "A" before "Y" may properly accept employment from "A". This to prevent unseemly conflicts between members of the bar, and for the reason that the discharging of "X" is not in line of practice of law.

The response to Question 2 is yes.

In response to Question 3:

In Advisory Opinion No. 39 (November 1932 State Bar Journal) under somewhat similar circumstances, the Board held that a client had the power, if not the right, to terminate the employment of an attorney. The Board is of the opinion that "Y" may with propriety accept employment from "A" after he has discharged "X" and has advised him of that fact, because "X" thereafter is no longer attorney for "A".