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When a Substitution Of Attorney is Needed
I am not a lawyer. This is my opinion and a summary of what I have learned
and observed in California. If you need legal advice,
contact a lawyer
(See our National Lawyer State Bar List).
When you purchase a Judgment, you can either hire a lawyer to represent you in court or you can (much more likely) represent yourself Pro Se (also known as Pro Per, meaning without a lawyer representing you.)
The reason you can represent yourself in court is because of the Sixth Amendment of the U.S. Constitution. In addition to guaranteeing a trial by jury, it provides for self-representation in any court of law. The decision has been upheld in every state. You can represent yourself in all legal proceedings. However, unless you are a licensed attorney, you cannot represent another person.
When a judgment enforcer looks at judgment cases, they will find and purchase judgments where the Original Judgment Creditor (OJC) had to hire a lawyer to file the lawsuit and win the Judgment.
Many times, the OJC has already paid his lawyer in full, with no remaining balance owed to the lawyer. Even then, in some states, you may need to have your OJC request that their lawyer remove themselves as the lawyer of record in the court the judgment was awarded at.
When the litigation is done, and the judgment becomes final, unless your lawyer is or was working to try and recover your post-litigation judgment. If they are not, there is no need for them to keep representing you on your final judgment. Even if your lawyer recorded liens after the judgment was won, if they did nothing else, they are most likely not representing you anymore.
An attorney represents a party, not a side. Once the judgment is assigned to a judgment enforcer, who exactly does that attorney represent? He does not represent the transferrer as the transferrer is no longer a party to the suit. Once the judgment is assigned to a new creditor, an attorney who used to represent the creditor is no longer in the picture.
Some states require a Substitution Of Attorney (SOA) form, where the lawyer removes themselves from the case. One example where a SOA must be used is New York - NY CPV Code 1021. Another example is Ohio, where Rule 25 says a substitution of attorney is needed.
If there was an attorney post-judgment, then something similar to a substitution of old attorney form will be necessary. Provide a blank substitution of attorney to the original judgment creditor. Then get their lawyer to sign it, to take them off the case, so the original judgment creditor can represent themself.
California is an example where a SOA form is usually not needed. (However, not all California Sheriff's seem to know this.) This is because of the laws CCP 673, 681.020, and section 4.06 of the Small Claims Manual, "A substitution of attorney by the assignee is not required when assigning the judgment." In California, the (seldom-used) SOA form is the MC-50.
Whenever a case is final, the attorney is no longer the attorney of record, unless they are hired post-judgment. Some courts have a local rule that the outgoing attorney must sign off to the judgment creditor before the judgment creditor can assign it to an enforcer.
Some more case law: "judgment creditor may assign the right represented by the judgment to a third person." (C.C.P. Section 954; Fjaeran v. Board of Supervisors (1989) 210 Cal.App.3d 434, 440.)
"In doing so, the judgment creditor assigns the debt upon which the judgment is based." (North v. Evans (1934) 1 Cal.App.2d64, 67.)
"Through such an assignment, the assignee ordinarily acquires all the rights and remedies possessed by the assignor for the enforcement of the debt, subject, however, to the defenses that the judgment debtor had against the assignor." (Teator v. Good Hope Dev. Corp. (1942) 55 Cal.App.2d 459, 462.)
"If the assignee files an acknowledgment of assignment of judgment in the court that entered the judgment, the assignee may obtain a writ of execution or use other enforcement remedies provided for in the Code of Civil Procedure." (C.C.P. Section 673 and 681.020; Fjaeran v. Board of Supervisors, supra, 210 Cal.App.3d at p. 440.)" [Great Western Bank v.Kong (2001), 90 Cal.App.4th 28.]
"The authority of an attorney, however, ordinarily ends with the entry of judgment, except for the purpose of enforcing it or having it set aside or reversed." (3 Cal.Jur. 668)." [Reynolds v. Reynolds, (1943) 21 Cal.2d. 580.]
If the creditor does not separately retain the attorney for post-judgment recovery purposes (e.g. enforcing, appealing judgment, etc.), the authority of the attorney (described in C.C.P. Section 283) ceases upon final entry of judgment, and the creditor is then free to assign the judgment to a third party (sometimes years later), presumably without a "Substitution of Attorney" form first being filled out by the former client.
The judgment enforcer's Assignment of Judgment form usually does not list the lawyer - only the OJC signs that under a notary's supervision. (See our Notary article.)
For judgment enforcers in States where a SOA form is needed, if the original creditor's lawyer is still working on trying to recover the judgment, the purchase agreement you prepare often names and is signed by both the OJC and the lawyer.
Even when lawyers remove themselves, they will still be owed money for their fees, and may file a claim in court for such fees. The OJC is obligated to pay those fees, and you probably should make sure your purchase agreement addresses the payment of all lawyer fees.
Some lawyers will file suit and win a judgment with the OJC retaining the lawyer on a contingency basis. When this is done there may be fees to be paid out of any recovery made on the judgment. In this situation, the OJC must request the lawyer to remove himself or herself as the lawyer of record.
In most states, when a lawyer removes himself or herself from representation on a judgment, they use a (usually) court-provided Substitution Of Attorney form. This form is used even when there is no new attorney. With no new attorney, the OJC is representing himself or herself.
While there are forms available for you to send to the OJC, it may be wiser to first request the OJC to ask their lawyer or former lawyer to remove themselves as attorney of record. If you are not a lawyer, note that if you prepare a substitution of attorney form for the lawyer, you always should be careful that your actions are not for "a client" as that could be interpreted as an Unauthorized Practice of Law (UPL).
Once in a while you will run across a lawyer that wishes to charge more than the OJC is willing to pay. You also may find that the lawyer has no interest in preparing or signing a substitution of attorney form for the OJC.
If the lawyer will not cooperate, the OJC can go to the attorney's office to thank them for winning the case, and explain that this is a way to start repaying the attorney's fees. As soon as the money comes in, they will be paid. Most lawyers will be happy to hear this and sign a substitution of attorney form.
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