The Thirteen Words of Hennessey

BurnA lot of divorce lawyers have this rule: do not take the case if you are not the first lawyer.

Of the “ten signs she’s a problem client,” firing a previous counsel is at the top of the list. And if the client is on her third lawyer—well, that’s like a mark of shame, a regular fleur-de-lis on her shoulder.

Personally, I never bought into the hype. I’ve been lawyer number five. It went fine. And why should a client have to stay with the same lawyer? It’s fine to change restaurants, hairdressers, girlfriends, courthouses. Some even change—so help us—our litigation support providers. Divorce lawyers represent people brave enough to carry on without their spouses.

Why should a woman brave enough to ditch a husband stay with her lawyer “for better or for worse?” Should the discriminating and persnickety really be always dubbed “a problem client”?

I think not!

Still, the trial courts do not usually see it my way. The trial courts are receptive to the argument: “Your Honor, Ms. Jane Doe is on her fifth lawyer.” As if somehow firing a lawyer reflects an indisputable character flaw, a bad deed, punishable even by sanctions. But why should changing multiple counsel be a sanctionable offense or at the very least evidence of bad faith? Should it?

Last week, the North Carolina Court of Appeals spoke on the matter in Hennessey v. Duckworth 13-629 (N.C. App. December 3, 2013). The answer is a resounding “NO!”

For the trial lawyers: Repeat these 13 words when you client gets blamed for changing counsel:

A litigant may wish to change counsel for many reasons, some perfectly valid. . . .

Writing for the Court, Judge Stroud added that, naturally, not all reasons are perfectly valid. Some are foolish or even in ‘bad faith.

But the important point is that the mere fact of changing counsel was not by itself sufficient to punish Mr. Duckworth (which was exactly what the trial court had done, and which was an error).

Importantly, this counsel-counting business is dictum, which the Court was ‘compelled to note.’ Why is that notable? Because the Court of Appeals went out of its way to tell us that changing lawyers is OK, and to give us—the trial lawyers—the quote. So if you are not the first lawyer for your client, I add the thirteen words of Hennessey to your flashcards, ready to quote every time the other side stands up to snitch that you are “Jane Does’s third lawyer.” Reply loudly and proudly:

A litigant may wish to change counsel for many reasons, some perfectly valid. . . .

I know I will.

P.S. Clients thinking of changing counsel, however, would be well served to consider the dangers and costs of transfer. Read more in the hilarious new release here and here. Or go straight to the Amazon page.

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