“While [a party] has an absolute right... to discharge his attorney at any stage of the proceeding, the substitution of an attorney of record can only be made in the manner provided in [CCP] section 284.” (People ex rel. Department of Public Works v. Hook (1967) 248 Cal.App.2d 618, 623.)

CCP 284 states "The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows:

1. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other."
2. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes;

“Once an attorney has actually undertaken the representation of a client, negotiating with defendants and filing pleadings, the execution and filing of a substitution of attorney is essential to an effective change in representation; until the substitution is a matter of record, the successor attorney cannot act affirmatively to protect the client's interests and the original attorney retains the power to bind the client by his or her actions.” Kallen v. Delug, 157 Cal.App.3d 940, 950 (1984).

Attorney Assignment

“[I]n determining whether an attorney-client relationship exists in cases like this, primary attention should be given to whether the totality of the circumstances, including the parties' conduct, implies an agreement. . .” [Emphasis added.] Id. Further, “[a]n implied contract is one, the existence and terms of which are manifested by conduct.” Civ. Code § 1621.

“California law is settled that a client's subjective belief that an attorney-client relationship exists, standing alone, cannot create such a relationship, or a duty of care owed by the attorney to that plaintiff. [Citations omitted.] This is because a plaintiff cannot unilaterally establish an attorney-client relationship, and its hindsight “beliefs” that such a relationship existed are thus legally irrelevant. (Ibid.) Instead, it is the intent and conduct of the parties that controls the question as to whether an attorney-client relationship has been created.” Zenith Ins. Co. v. Cozen O'Connor (2007) 148 Cal. App. 4th 998, 1010.

“Although an implied in fact contract may be inferred from the ‘conduct, situation or mutual relation of the parties, the very heart of this kind of agreement is an intent to promise.” Id. “A client's belief in attorney-client relationship must be reasonably induced by attorney's representations or conduct.” Moss v. Stockdale, Peckham & Werner (1996) 47 Cal. App. 4th 494, 504; citing Fox v. Pollack (1986) 181 Cal. App. 3d 954, 959.

“The question of whether an attorney-client relationship exists is one of law. . . . However, when the evidence is conflicting, the factual basis for the determination must be determined before the legal question is addressed.” Responsible Citizens v. Superior Court (1993) 16 Cal. App. 4th 1717, 1733. The, “question of law [is] dependent upon “’”a judicial weighing of the policy considerations for and against the imposition of liability under the circumstances.”’” Fox v. Pollack (1986) 181 Cal. App. 3d 954, 960.

Judicial Notice

A Substitution of Attorney form executed by a party does not become effective until it is filed by the party with the Court. (See Code of Civ. Proc. § 284.)

“Evidence Code sections 452 and 453 permit the trial court to ‘take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached – in the documents such as orders, statements of decision, and judgments – but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.’” People v. Woodell, 17 Cal.4th 448, 455 (1998).

The court may also take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Evid. Code § 452(h). A court can take judicial notice the legal effect of a recorded document, when that effect is clear. Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256, 265 (2011); Poseidon Dev., Inc. v. Woodland Lane Estates, LLC, 152 Cal.App.4th 1106, 1117-1118 (2007). The same logically applies to a document filed with the court. The court will take judicial notice of the substitution of attorney filed in the underlying dissolution action and its legal effect.

“The main purpose of a substitution of attorneys is that both the court and opposing counsel may know that they are dealing with an attorney who has power to bind the party he purports to represent.” (Carrara v. Carrara (1953) 121 Cal.App.2d 59, 62.) “[T]he attorney's actual authority bears more significance than the substitution document recording it.” (Baker v. Boxx (1991) 226 Cal.App.3d 1303, 1310.) “Where the actual authority of the new or different attorney appears, courts regularly excuse the absence of record of a formal substitution and validate the attorney's acts, particularly where the adverse party has not been misled or otherwise prejudiced.” (Baker, supra, 226 Cal.App.3d at p. 1309, referencing Crocker National Bank v. O'Donnell (1981) 115 Cal.App.3d 264, 268–269, [terming failure to file substitution a “technical objection”]; and Carrara v. Carrara (1953) 121 Cal.App.2d 59, 62, 262 P.2d 591 [irregularity in substitution does not oust jurisdiction].)

Proof of Service

Proof of service is required. “When an attorney is changed, as provided in the last section, written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party.” (Code of Civ. Proc. § 285.)

How Substitution Affects the Statute of Limitations

In Nielsen v. Beck, 157 Cal.App.4th 1041, 1051 (2007), the court stated that “a strong argument can be made that the statute of limitations could not extend any later than [the date], when the substitution of attorney form was executed….” The court reasoned that the execution of the form demonstrated that the ongoing relationship between former counsel and the client had ended and former counsel would no longer be rendering legal advice. Id.

Forms

MC-050 Substitution of Attorney—Civil (Without Court Order)

Substitution/Association of Attorney