General Practice, Solo, and Small Firm Division The Compleat Lawyer
Winter 1998 © American Bar Association. All rights reserved.
Fifty Ways to Leave Your Client
BY ANN MASSIE NELSON
Ann Massie Nelson is director of communications for Wisconsin Lawyers Mutual Insurance Co., Madison, Wisconsin. She writes a regular risk management column for Wisconsin Lawyer magazine, portions of which were adapted for this article with the permission of the State Bar of Wisconsin.
Withdrawing from representation of a client is never as simple as just slipping out the back (apologies to Paul Simon), even though you may be tempted to do so when a client asks you to violate your professional or personal code of ethics.
Ethics rules vary by state. However, the ABA Model Rules of Professional Conduct, versions of which have been adopted by 41 jurisdictions, offer some guidance to the lawyer trapped between duty to client on one hand and oath to uphold the law on the other.
Withdrawal is mandatory when a client demands that you engage in illegal conduct or violate the Rules of Professional Conduct, according to Model Rule 1.16. (Simply suggesting you act illegally does not oblige you to withdraw, since the client may be floating a trial balloon to gauge your response.)
Withdrawal is permissive under certain circumstances, including (but not limited to) occasions when a client:
- Persists in a course of action involving your services that you believe is criminal or fraudulent.
- Has used your services to perpetrate a crime or fraud.
- Insists on pursuing an objective that you consider repugnant or imprudent.
In short, "...withdrawal is mandatory when the lawyer's own conduct will violate the Rules or law. If it is the client's conduct that will violate the law, withdrawal is permissive," according to the ABA Annotated Model Rules of Professional Conduct (1996). (See also Rule 1.2 (d), Scope of Representation.)
Risking your law license or forever tainting your professional reputation by becoming an accessory to a client's criminal or fraudulent acts hardly seems worth the gamble. But in the heat of battle, lawyers often don't realize when they've taken the first step down a slippery slope where each client request takes them a little closer to the brink.
Hired Gun or Champion of Justice?
Permissive withdrawal from representation raises the kind of questions often debated in campus coffee houses and law student watering holes:
- Would you withdraw from representing a client who you believed was concealing retirement funds in a divorce proceeding?
- What would you do if you learned a long-term client underreported income on the tax return you helped prepare?
- Would you represent a corporation that knowingly pollutes the environment or makes a potentially harmful—yet legal—product?
- Are lawyers "combat mercenaries" available for any cause clients are ready to finance? Or are they "ministers of justice," as former U.S. District Court Judge Marvin E. Frankel once proposed?
If you are an associate working on assigned cases or a sole practitioner struggling to make payroll, you may feel more like a disciple of the billable hour than a minister of justice. Eager to maintain revenues and please clients, lawyers sometimes ignore their gut when it tells them, "Don't do it. This isn't worth risking my career."
"Most lawyers who have continued with problem clients have regretted it," says Kirk R. Hall, chief executive officer of the Oregon State Bar Professional Liability Fund and a former member of the ABA Standing Committee on Lawyers' Professional Liability. "When something seems odd or wrong, it's time to stop. Like most things in life, the situation seldom gets better and typically it gets worse."
First, Do No Harm
When withdrawing from a case, the Model Rule states that "a lawyer shall take steps to the extent reasonably practicable to protect a client's interests."
"My experience has been that the more you go out of your way to make sure people land on their feet, the less likely they are to blame you," says K. William Gibson, a Portland, Oregon, lawyer and author of How to Build and Manage a Personal Injury Practice, (American Bar Association, 1997; to order, call 800/285-2221. Refer to PC 5110386).
The hazards of withdrawing from representation come in determining when and how to terminate the attorney-client relationship. By protecting the client's interests, you reduce your risk of a malpractice or grievance claim.
Here are some suggestions for how to protect your client's—and your own—interests.
Read the ethics rules for the states where you represent clients and the local rules of court. "Rules vary significantly from one state to another, even from one court to the next," advises Mary L. Cibella, a Cleveland, Ohio, lawyer who concentrates in the area of professional responsibility.
In addition, look at how the agency that issues ethics opinions has handled particular situations. Has a court in that jurisdiction interpreted the rules? Be aware that the court and agency interpretations may differ, Cibella adds.
Give the client reasonable notice. The length of time considered "reasonable" will depend upon the status and complexity of the case. If the matter is in litigation, you will need the court's permission to withdraw. Courts have wide discretion in granting or denying a motion to withdraw, taking into account not only the client's interests but also those of the opposing parties and the judicial process.
"Courts are not going to entertain a withdrawal on the eve of a trial or hearing," notes Cibella.
Even if you're not litigating the case, don't sleep on it until the client has few options left.
"The client you don't fire is the one who's most likely to lead to malpractice," says Katja Kunzke, director of claims at Wisconsin Lawyers Mutual Insurance Co. "This file will sit on the side of your desk until you miss a deadline or make a mistake because you didn't want to deal with it. You want to get out when the most options are still available to the client."
Allow time for employment of other counsel. You can help protect the client's interests (and get yourself off the hook) by encouraging the client to retain a new lawyer as soon as possible. Refer the client to your state or local bar's lawyer-referral service rather than recommending specific lawyers. Nominating your replacement could be viewed as suspect by the client and, in the case of a problem client, won't win you any favors with your colleagues.
Again, the more time you allow for finding another lawyer, the better. "I received a fax from a client who demanded that I advance him living expenses while waiting for trial. My first instinct was to bail immediately. Instead, I sent the client a letter telling him he had 30 days to find another attorney," recalls Gibson.
Maintain client confidentiality. As noted in the comment regarding Rule 1.6 of the Model Rules of Professional Conduct, after withdrawal the lawyer must not disclose client confidences, except when "the lawyer reasonably believes (it is) necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm." (Lawyers also may reveal confidential client information if necessary to defend themselves in certain situations involving the client.)
Blowing the whistle on client fraud is regu-lated by the rules in each jurisdiction. "Some-times you're required to reveal. Sometimes you're required to keep your mouth shut," notes Cibella.
How much information you divulge to the court or to replacement counsel must be handled with utmost diplomacy to avoid prejudicing the client. The consensus of those interviewed for this article is that the less said, the better. (See Model Rule 1.6, Confidentiality of Information, and comments for more guidance.)
Surrender client's papers and property. Hold-ing a client's file hostage for unpaid legal fees is unwise.
"Return the client's paper and property and worry about collecting fees later," Cibella emphasizes. "Even if the client owes a large sum of money, it's cheaper in the long term to work out some kind of payment plan than to defend a malpractice claim or a claim filed with a disciplinary agency because you failed to give the documents back."
Retain a copy of the entire file, if practical, recommends Kunzke. At minimum, keep copies of your work product, all correspondence, and notes.
In your disengagement letter (see "A Disengagement Letter Protects You When You PART Ways"), tell the client when and where the file is available for pick up or offer to send the file to the client's new lawyer. Get a signed and dated receipt so that you have a record of the file's transfer.
Refund unearned legal fees. Send a detailed summary of the fees incurred during your representation and return any unused retainer.
Why Don't You Just Sleep on It Tonight?
Even though you study the rules and follow the procedures for withdrawing from representation, you cannot immunize yourself from a malpractice claim or disciplinary complaint.
Before you fire a client:
- Wait 24 hours to mail your disengagement letter. A word processor in the hands of a lawyer is like a loaded gun, says one lawyer.
- Talk it over. "You're not alone in this. Plus, getting the opinions of others shows you made an effort to do the right thing," says Cibella. Call your state bar's ethics hotline or the ABA's ETHICSearch at 312/988-5323.
- Consult your professional liability insurance provider. "Tell them the situation and ask for their advice. Sometimes they have recommendations that I haven't thought about, plus it alerts them to a potential problem," says Gibson.
- Document your actions. If later a malpractice claim or grievance is filed, contemporaneous documentation of your thoughts and actions will be your best defense, advises Cibella.