Changing Lawyers in the Middle of a Case?
Your lawyer stopped returning calls, missed a date, or you have simply lost confidence. In New York you can move your case to new counsel while it is pending. Here is how the switch works, what happens to the first lawyer’s fee, and what to do first.
Tell Me About the CaseYou Can Change Lawyers.
New York gives a party two ways to change attorneys during a pending case, both in CPLR 321(b).
By consent. 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,” with notice to the attorneys for all parties (CPLR 321[b][1]). “Acknowledged” means your signature is acknowledged before a notary. This is the usual route, and your new lawyer prepares the form.
By court order. If the first lawyer will not sign, the change can be made “by order of the court in which the action is pending, upon motion,” on notice to you, the other parties’ attorneys, and anyone else the court directs (CPLR 321[b][2]). The consent route is not available when the party is a minor or another person covered by CPLR 1201, so a court order is needed there.
What Happens to the First Lawyer’s Fee.
Judiciary Law § 475 gives the attorney who appeared for you a lien on your claim, and the lien “attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds thereof in whatever hands they may come.” Changing lawyers does not erase that claim. The statute also provides that the court, on the petition of the client or the attorney, “may determine and enforce the lien.”
In practice, the first lawyer’s claim is usually worked out between the two lawyers or set by the court. Before you sign with a new lawyer, ask how the first lawyer’s claim will be handled and whether it comes out of the same fee, and get the answer in the new retainer.
The Deadlines Keep Running.
Changing lawyers does not pause the case. CPLR 321(c) stops proceedings for 30 days after notice to appoint another attorney, but only when an attorney “dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled.” A client’s decision to change counsel is not one of those events. If a court date, a discovery deadline, or a motion return date is close, the new lawyer needs to be in before it.
What to Gather Now.
The index number and the court, every order or notice you have received, the next court date, your retainer agreement with the first lawyer, and the first lawyer’s name and contact information. Ask the first lawyer for your file in writing, or let your new lawyer make the request. If the first lawyer holds the file over an unpaid fee, that dispute can be brought to the court.
Frequently Asked Questions
Can I change lawyers in the middle of a case in New York?
Yes. CPLR 321(b) lets a party change attorneys while the case is pending, either by filing a consent signed by the retiring attorney and signed and acknowledged by the party, or by court order on motion.
Does my current lawyer have to sign anything?
For the consent route, yes. The consent to change attorney must be signed by the retiring attorney and signed and acknowledged by you. If the lawyer will not sign, the change can be made by order of the court on motion.
What happens to my first lawyer’s fee?
Judiciary Law 475 gives the attorney who appeared for you a lien on your claim that attaches to any verdict, settlement, or judgment in your favor and its proceeds, and the court can determine and enforce that lien. Before you sign with a new lawyer, ask how the first lawyer’s claim will be handled and get the answer in the new retainer.
Does changing lawyers stop the deadlines in my case?
No. Court dates and deadlines keep running. The 30-day pause in CPLR 321(c) applies when an attorney dies, becomes incapacitated, or is removed, suspended, or otherwise disabled, not when a client chooses new counsel. Move quickly if a deadline is close.
How do I get my file from my old lawyer?
Ask for it in writing, or have your new lawyer request it. If the former lawyer holds the file over an unpaid fee, that dispute can be brought to the court.
Tell Me About the Case.
I take over personal injury cases, and business lawsuits where $25,000 or more is at stake, in New York Supreme Court. Send me a short description and the next court date, attach any papers you have, and I will tell you whether I can take the case and what the switch involves.
Phone: 212-233-0666 | Email: fabramson@abramsonlegal.com
Why the Courtroom Matters.
I have practiced in New York since 1997, and my office is in New York Supreme Court every week, in all five boroughs and in Nassau, Suffolk, and Westchester. I know how the parts run and what the judges expect, and that shapes every paper and every settlement conversation from the first day.
When you contact me, I run a conflict check first. If I can take the case, I will tell you plainly where things stand, what the deadlines are, and what it will take.
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Attorney Advertising. Prior results do not guarantee a similar outcome. This page is general information, not legal advice about your situation. The Law Office of Frederic R. Abramson, 160 Broadway, Suite 500, New York, NY 10038. 212-233-0666.