Motion for Substitution of Attorney in New York

What Is a Motion for Substitution of Attorney?

How to Structure the Motion

N.Y. C.P.L.R. § 321 provides the framework for the substitution of attorneys. Section (b) concerns change, [substitution], or withdrawal of attorney and reads in relevant part:

  1. Unless the party is a person specified in section 1201, an attorney of record may be changed by filing with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged by the party. Notice of such change of attorney shall be given to the attorneys for all parties in the action or, if a party appears without an attorney, to the party.
  2. An attorney of record may withdraw or be changed by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct.

(N.Y. C.P.L.R. § 321)

Section (c) concerns replacement or substitution in the event of death, removal or disability of an attorney, and reads in relevant part:

If an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs.

(N.Y. C.P.L.R. § 321)

Attorney's Wish to Terminate the Relationship

“The attorney may terminate the relation upon good cause.” (Goldsmith v. Pyramid Communications, Inc. (1973) 362 F. Supp. 694 citing Matter of Dunn (1912) 205 N.Y. 398, 98 N.E. 914.) He thereby commits no breach of contract, for by definition he had good cause to terminate. In such a case, the attorney asks permission to terminate the relation without cause: that is to say, he seeks leave to breach the attorney-client contract. (Id.)

Client's Wish to Terminate the Relationship

“[I]t is equally well established that notwithstanding the terms of the agreement between them, a client has an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney.” (Campagnola v. Mulholland (1990) 76 N.Y.2d 38 citing Shaw v. Manufacturers Hanover Trust Co. (1986) 68 N.Y.2d 172, 177; Teichner v. W J Holsteins (1985) 64 N.Y.2d 977, 979.) “Where that discharge is without cause, the attorney is limited to recovering in quantum meritum the reasonable value of the services rendered.” (Teichner v. W J Holsteins, supra.)

Recovery of Fees for Discharged Attorney

Where that discharge is without cause, the attorney is limited to recovering in quantum meruit the reasonable value of the services rendered. (Campagnola v. Mulholland, 76 N.Y.2d 38, 44 citing Teichner v. W J Holsteins, supra.) Where the discharge is for cause, the attorney has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement. (Id.) “Th[is] rule ....is well calculated to promote public confidence in the members of an honorable profession whose relation to their clients is personal and confidential.” (Id.)

Retrieval of File

In Tower Insurance Co. of New York v. Ovalles, the court granted the motion for a substitution of counsel and allowed the defendants to retrieve their file from counsel on one day's written notice. The court took no position about whether the substitution was “for cause,” since the attorney-client relationship was at will. (Tower Insurance Co. of New York v. Ovalles (2009) N.Y. Slip Op. 30733, 1, 9.)

The Court’s Decision

Here are a few examples of how courts have ruled:

In Thomas v. Weitzman, the court held that generally, “from the standpoint of adverse parties, counsel's authority as an attorney of record in a civil action continues unabated until the withdrawal, substitution, or discharge is formalized in a manner provided by CPLR 321.” (Thomas v. Weitzman (2018) N.Y. Slip Op. 30528 at 1 citing CPLR 321 (b) [providing that “an attorney of record may be changed by filing with the clerk [an executed] consent to the change” or by “by order of the court in which the action is pending.”])

In Artache v. Goldin, the court held that if an attorney is discharged without cause, he is entitled to a charging lien for the reasonable value of his services rendered prior to the date of the substitution of counsel where his representation was entirely competent and successful up until his discharge, any potential conflict of interest was disclosed and the plaintiff chose to continue to be represented by the attorney, and the discharge of the attorney occurred solely because of a fee dispute. (Artache v. Goldin (1991) 173 A.D.2d 667.)

In Williams v. Hertz Corporation, the court emphasised that ... “[I]t would be inequitable for [an] outgoing attorney to retain the papers in the action, since that would render near impossible the preparation of the case for trial by the incoming attorney. Should it be determined that the outgoing attorney is entitled to compensation, he shall have a lien on the proceeds in that amount. However, an attorney who is discharged for cause or misconduct has no right to the payment of fees and no retaining lien on his client's papers.“ (Williams v. Hertz Corporation (1980) 75 A.D.2d 766 citing Matter of Weitling, 266 N.Y. 184; First Nat. Bank of Cincinnati v. Pepper, 454 F.2d 626).

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