Substituting into a California case before trial

You get the call eight weeks before trial. Decent case, unhappy client, current lawyer is not going to try it. The question is never whether you can get into the case. It is what you have taken on by the time you do.

The two ways in

Consent, or an order. Nothing else counts.

CCP 284 gives you two. A consent substitution under CCP 284(1), on form MC-050, filed with the clerk, needing no court approval. Or a court order under CCP 284(2), which in practice means the outgoing lawyer moving to be relieved under CRC 3.1362 on forms MC-051, MC-052 and MC-053.

The MC-052 declaration has to state, "in general terms and without compromising the confidentiality of the attorney-client relationship," why the motion is brought instead of a consent under section 284(1). The MC-053 order has to specify every hearing date scheduled in the action, the trial date included.

Watch the effective date on that route. Under rule 3.1362(e) the court may delay the order relieving counsel until proof of service of the signed order on the client has been filed. So there is a stretch where the motion has been granted and the outgoing lawyer is still counsel of record.

Those two routes are the whole list. Section 284 says the attorney "may be changed at any time before or after judgment or final determination, as follows," and then gives consent or a court order. There is no informal third option.

CCP 285 is the part people skip. Until written notice of the change goes to the adverse party, that party is entitled to keep recognizing the former attorney.

If the client is an entity, watch the sequencing. A corporation cannot appear in propria persona and cannot sit unrepresented while you make up your mind. Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724.

The wait and see trap

You can sit on the form. You cannot sit on the duties.

Here is the question that prompted this piece. I signed the fee agreement, trial is in six weeks, can I sit on the substitution and see whether the date moves before I put my name on it?

The attorney-client relationship arises from the fact of the relationship, not from the paperwork. It can be written or oral, express or implied, and it can be built out of nothing but how the parties dealt with each other. No retainer has to be signed and no fee has to be paid. Gulf Ins. Co. v. Berger, Kahn (2000) 79 Cal.App.4th 114.

So once the client has retained you and you have started giving advice, rule 1.1 competence, rule 1.3 diligence and rule 1.4 communication are already running. You signed a fee agreement, which is considerably more than Gulf required.

What you do not have is standing. You cannot appear, cannot file, cannot ask the court for anything, and the other side is still serving the lawyer you are replacing. Duties without power, on a docket that pauses for neither.

The waiting also makes the continuance harder to get. Rule 3.1332(d)(1) asks about the proximity of the trial date, and the whole rule turns on diligence.

Substituting in does not move the trial date

It is a listed ground for a continuance and it is the hardest one on the list to satisfy.

Rule 3.1332(a) says trial dates are firm and that "[a]ll parties and their counsel must regard the date set for trial as certain." Subdivision (c) says continuances are disfavored and that the court may grant one "only on an affirmative showing of good cause requiring the continuance."

Required, not preferred.

The line running through those four is necessity. A client abandoned by counsel has an argument. A client who went shopping does not.

Read Tara & Robert D. honestly, though, because it cuts both ways. It is a family law decision, and it says in as many words that losing counsel shortly before trial often is good cause, citing rule 3.1332(c)(3) and (c)(4) along with Vann. The reason the appellant still lost is that he never put on a record of what a continuance would have changed. Which is the practical lesson: name the length, name the replacement, and say what cannot be done by the current date.

Contingency versus hourly

A California charging lien is created by contract only, never by operation of law.

Gelfand, Greer, Popko & Miller v. Shivener (1973) 30 Cal.App.3d 364. It does not need the word "lien," only an agreement showing the attorney is looking to the judgment as security. Hansen v. Jacobsen (1986) 186 Cal.App.3d 350.

Contingency: yes, there can be a lien, and usually there is one. A contingency agreement does not create one automatically, but it does where the parties manifested that intention. Little v. Amber Hotel Co. (2011) 202 Cal.App.4th 280. A charging lien in an initial contingency agreement is treated as an equitable corollary inherent in the contract, so rule 1.8.1's informed-written-consent machinery does not apply to it. Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, following State Bar Formal Opinion No. 2006-170.

Hourly: no lien unless you wrote one, and if you wrote one you had to do it right. Fletcher v. Davis (2004) 33 Cal.4th 61 holds that a charging lien securing hourly fees is an interest adverse to the client, so rule 1.8.1 applies in full: written disclosure of fair and reasonable terms, written advice to seek independent counsel, informed written consent. Miss a step and the lien is unenforceable, which is what happened in Fletcher itself. The Court left open whether the same requirements reach a contingency lien in the same matter.

The lien you are walking into

Nothing about it is in the court file, it cannot be paid out of your case, and it does not accrue until your client recovers.

Your client's power to fire the last lawyer was absolute, with or without cause, and exercising it was not a breach of anything. Fracasse v. Brent (1972) 6 Cal.3d 784. What that lawyer keeps is quantum meruit for services through discharge, and the claim does not accrue until the client actually recovers. No recovery, no fee.

That lawyer also cannot be paid out of your case. The lien has to be established in a separate independent action, and the trial court in the underlying case has no jurisdiction to determine or invalidate it. An order in the underlying action purporting to affect the lien is void. Carroll v. Interstate Brands Corp. (2002) 99 Cal.App.4th 1168; Hansen v. Jacobsen (1986) 186 Cal.App.3d 350.

And the predecessor cannot come straight at you. Mojtahedi v. Vargas (2014) 228 Cal.App.4th 974 requires the first lawyer to establish the lien's existence, amount and enforceability against the client before suing successor counsel for a share of the proceeds. Where there is no live dispute with the client, that is a declaratory relief action under CCP 1060.

Nothing has to be filed for the lien to exist. It arises on execution of the retainer, and a judgment on it is not a condition of its viability. Little v. Amber Hotel Co. (2011) 202 Cal.App.4th 280. Filing a notice of lien in the pending case is permitted but not required. Hansen v. Jacobsen, supra. So ask for the predecessor's fee agreement before you sign yours, because the court file will not tell you.

When the money lands, do not disburse over an asserted lien. A third party who impairs an attorney's rights under a valid lien can be liable for tortious interference. Little, supra. Hold the disputed share and interplead under CCP 386.

The local layer

Everything above is statewide. Getting a continuance in front of a judge is not. Some courts route it to the presiding judge and nowhere else, some require a noticed motion and will not take an ex parte, some want your calendar attached.

Sacramento is the only county in the list below that makes you attach the attorney's calendar, under Rule 2.11, and then makes every other party file their own availability during the opposition period. San Francisco is the one that says out loud, in Rule 6.0(B), that no motion to continue a trial date may be heard in any department other than the presiding judge's.

Direct calendar, complex and personal injury hub departments routinely layer their own standing orders on top of anything in there. Local rules also change on their own schedule. Confirm both before you rely on any of it.

The lawyer who signs the agreement and then waits has taken on every duty, acquired none of the power, and spent the diligence that was the only real argument for moving the date.