Substitution of Attorney
The inquiry in this case is whether it would be proper for an
attorney to represent a defendant in a civil suit without receiving
a substitution of attorney from another attorney who had acted
informally for the defendant in the cause, but had filed no answer
nor taken any other procedural step in the cause.
Representation in the criminal case is not the subject of the inquiry but the facts therein bear on the issue in the civil suit.
The client had been indicted for larceny of a large sum from his employer. Attorney A had been retained to defend the client and had been paid $2,000 on account of a $7,000 retainer. During the six months after the indictment Attorney A had arranged for the client's release on bail and for a change of plea to "Not Guilty". He had conducted no discovery proceedings. The client, desiring to change counsel offered a retainer to Attorney B. At a conference on the question of representation in the criminal action, attended by Attorneys A and B and the Assignment Judge, the Judge gave his opinion that the client was entitled to be defended by counsel of his choice and that it would be proper for Attorney B to accept the proffered retainer and defend the client in the criminal case regardless of A's unpaid bill. Subsequently Attorney B learned that at the time of the indictment six months earlier the client's employer had instituted a civil suit to recover damages for the client's alleged illegal conduct. Attorney A had filed no answer to the complaint nor taken any procedural steps although otherwise acting as if he were the client's attorney in the civil suit.
The employer-plaintiff's attorney did not proceed to have a default judgment entered and has agreed to consent to the late filing of an answer if promptly made. Attorney A refuses to release any documents relating to the civil cause because of his unpaid retainer. The client wants Attorney B to defend him in the civil action in which he is not represented on the record. Attorney A refuses to give a substitution of attorney. The inquiry relates solely to the propriety of Attorney B representing the client in the civil suit. Neither the matter of representation in the criminal action nor any question with respect to Attorney A's lien rights are before us. The latter is a matter of law upon which this Committee expresses no opinion.
In our opinion, Attorney B, without securing a substitution of attorney, may properly proceed to defend the client's interests in the civil suit in which the client's rights are in jeopardy because of the default of any formal appearance and procedural steps on his behalf.
A client's rights to representation by counsel of his own choice in a suit are paramount to and wholly apart from any rights of counsel to compensation pursuant to an agreement with the client. This subject is covered by Canons 7 and 44 of the Canons of Professional Ethics. Canon 7 sets forth guides for conduct between professional colleagues; Canon 44 portals to conditions upon which an attorney may or should withdraw from his employment by a client.
It has been well stated that:
A lawyer may properly accept employment to handle a matter which has been previously handled by another lawyer, provided that the other lawyer has been given notice by the client that his employment has been terminated. The lawyer originally engaged has his remedy at law for any breach of contract that may occur through the client's termination of his employment but he cannot insist that his professional brethren refuse employment in the matter merely because he claims such a breach of contract. To hold otherwise would be to deny a litigant's right to be represented at all time by counsel of his own selection. (A.B.A. Committee on Professional Ethics and Grievances, Opinion 149 (2/15/36).)
See also opinion and citations of New Jersey Court decisions to the same effect in State v. Home Fuel Oil Co. of Ridgewood, 6 N.J. Super. 414, 418 (1949).