“Take the time to assess the particular situation, including the basis for wanting to terminate the relationship, the type of matter in which they are representing the client, and the stage in the proceedings.”
Do you have a problem client who is wasting too much of your time? Possibly leading you to a professional ethics quandary? Or for whom the further representation is no longer profitable?
You are not alone, and the sane side of your well-honed intellect is telling you to cut this client loose. But when it comes to the attorney-client relationship, as a teen romance ballad once phrased it: ‘Breaking Up Is Hard to Do.’ We will explore why that is, what the warning signs are of a toxic client and the professional ethics considerations for bidding farewell.
What Went Wrong?
Sooner or later, the legal practitioner will find himself or herself facing a difficult client. There are a number of reasons why the relationship goes sour, including because the client thinks that once you are retained for a particular matter, you instantly become the client’s psychologist, social worker, marriage counselor, clergy, and global go-to person. Or, perhaps the client happens to be ‘a little short on cash’ and, as a result, becomes considerably delinquent in paying your ongoing fees. Then there is the client who goes AWAOL despite the fact that their in-person attendance at a variety of proceedings is urgently needed….and the tribunal, as well as opposing counsel, is losing patience.
Or, perhaps it is the client who wishes to sever the relationship, but the reasons for doing so are nebulous at best, or worse, iniquitous with the intention of getting something out of the break that they clearly don’t deserve. The filing of unfounded complaints will not only waste more of your and your staff’s precious time but might also end up in a disciplinary proceeding or malpractice suit—despite being baseless.
No Easy Exit
Generally, a client can drop an attorney at will, but when that happens, the attorney is usually entitled to be paid for legal services rendered; however, termination by the attorney is not an automatic right and is governed by various rules of professional conduct. Although withdrawal may be mandatory in cases where the client has discharged the attorney, or a medical condition of the lawyer impairs the ability to continue with the representation (ABA Model Rule 1.16(a)), or if an attorney determines that he or a member of his firm will likely be called as a witness in a litigation matter, withdrawing when the client does not give consent can be much more problematic. Furthermore, even when the attorney has established that good cause exists for terminating the attorney-client relationship, the attorney must still take ‘reasonable steps’ to avoid undue harm to the client, including tendering adequate notice and allowing a client a reasonable amount of time to engage new counsel.
Failure by the attorney to abide by the requisite withdrawal procedures can expose the attorney to disciplinary action for not following the Rules of Professional Conduct. And a malpractice suit can arise in cases where the attorney withdrew under circumstances that breached his or her duty of care towards a client, such as, withdrawing just before the statute of limitations for filing runs. In those cases, it is advisable that the attorney prepare a simple pro se complaint for the client to file, thereby avoiding statute of limitations problems.
The court may refuse to grant an attorney permission to withdraw from a case if the ‘efficient functioning’ of the court might be harmed, such as in situations where there have been several trial continuances and the filing of an appearance by a new attorney at this stage would further act against the interests of smooth court administration and justice. In a 2002 Florida marital dissolution case, the trial court, in fact, granted the attorney leave to withdraw due to the fact that his client was no longer compensating him. However, the appeals court reversed that ruling.
When Withdrawal is Permitted
ABA Model Rule 1.16(b) lists several circumstances under which permission to withdraw should be granted:
- The client persists in a criminal or fraudulent course of action;
- The client has used the lawyer’s services to perpetrate a crime or fraud;
- The client insists on taking action that the lawyer considers repugnant or with which he fundamentally disagrees;
- The client fails to fulfill an obligation to the lawyer regarding the lawyer’s services (after an appropriate warning of the possible withdrawal);
- The representation will result in an unreasonable financial burden on the lawyer;
- The representation has been rendered unreasonably difficult by the client; or
- Other good cause for withdrawal exists.
Interestingly, the most common reason for the attorney wanting to withdraw from representing the client is when ill will comes between the two resulting in a breakdown of the attorney-client relationship. However, the attorney should bear in mind that just because good cause exists for terminating the relationship, that does not necessarily mean that the attorney’s quantum meruit lawsuit to recover fees will, in all cases, be successful.
Some Wise Practice Tips
Several factors should be considered before breaking with the problem client, including not only the reason but also the type of matter for which the client is being represented. Withdrawing from a real estate acquisition or an M&A transaction will likely have very different considerations at play than withdrawing from a court case—although any withdrawal can have potential professional liability and/or malpractice consequences. Assessing what stage the transaction or litigation is at should be carefully weighed by the attorney.
Furthermore, the attorney is in a better position to assert those reasons listed under Model Rule 1.16(a) cited above than a purely ‘financial reason’ for withdrawing. Even when the attorney has good grounds for withdrawing, much care must be taken to avoid breaching ethical responsibilities as to confidentiality by unduly disclosing the specific reasons for the withdrawal. This includes the manner in which ‘not paying bills’ is dealt with or a matter of alleged ‘improper activity’, both of which must be crafted as general averments. All other sensitive or confidential information must likewise be fully protected from improper disclosure.
Unless a legitimate attorney’s lien applies to certain records, the attorney should endeavor to transfer client files to the new attorney (or get a receipt for the same from the client himself or herself), and the attorney should, in all cases, abide by the ethical obligation to assist new counsel in the transfer. A formal ‘disengagement letter’ should be sent by the attorney—thereby documenting when representation ceased—and whenever possible, the client’s acknowledgment of same should be obtained in writing.
Your Reputation in the Marketplace
There is an old saying: “if they love you, they tell three people, but if they hate you, they tell ten.” The same applies to attorney-client breakups, regardless of the reason. Therefore, the attorney should be mindful of the reputational repercussions of a breakup in the overall marketplace and do everything possible to, if not avoid the breakup, then to make it as smooth and amicable as possible, in the interests of your professional reputation and future business in the community.
The attorney who takes the time to carefully plan and execute disengagement from the client in a professional, responsible way can avoid both operational headaches as well as potential professional responsibility problems.
Executive Summary
The Issue
How best to handle the situation where the attorney-client relationship is severed?
The Gravamen
Termination by the attorney is not an automatic right, and attention must be paid to what the Model Rules and local rules have to say about attorney withdrawal from representation.
The Path Forward
If avoidance of the breakup is not an option, then careful exit planning must be undertaken so as to prevent adverse regulatory, reputational, and malpractice consequences.
Action
1. Cause for Termination:
Become familiar with what are the legitimate reasons for termination of the relationship before you decide that you have ‘had enough’.
2. Client Notice:
It is essential that you make every reasonable effort to notify the client in a timely manner of your intention to withdraw from representation, what the consequences might be, and the steps to be taken by the client.
3. Timing and Stage of Proceedings:
The attorney must analyze how the timing of the withdrawal might affect the duty of care required to be shown to the client, and if a serious adverse consequence harms the client, the attorney must reconsider the timing of the withdrawal.
4. Cooperation Post-breakup:
The attorney’s professional obligations might not end on the date of termination, and the attorney should be prepared to assist the client when a statute of limitations issue is present and to fully cooperate with replacement counsel.
Further Reading:
- https://www.hklaw.com/en/insights/publications/2022/03/how-attorneys-can-ethically-terminate-a-client-relationship
- https://www.embroker.com/blog/difficult-legal-clients/
- https://www.attorneys-advantage.com/Resources/Firing-Your-Client
- https://www.advocatemagazine.com/article/2019-february/terminating-the-attorney-client-relationship
- https://www.tlie.org/when-its-time-to-say-goodbye-terminating-the-attorney-client-relationship/
- https://www.osbplf.org/blog/inpractice/ready-aim-fireor-maybe-not–the-ordeal-of-terminating-a-client-/
- https://www.lawyersmutualnc.com/blog/how-to-cut-a-bad-client-loose
