As any new practitioner knows, it can be hard to find paying work. So, early in my practice, when I received a referral for a relatively simple landlord-tenant matter (at a reduced rate), I was just happy for the work. Maybe a little too happy. I ignored what I now know to be two very big red flags—litigation with a previous attorney over fees and (very) unrealistic expectations.
Barely a month into my representation, I was frustrated. The client frequently changed his settlement demands, making negotiating with opposing counsel almost impossible. He refused to provide discovery, and he routinely contacted me to discuss, at length, various concerns—communications that he later complained were too expensive. Of course, these are not unusual attributes of a client. But then my client sent me a bill for the time he spent working on his case. After deducting what he owed me for my work, I still owed him money. It was officially time to break up.
All client relationships come to some sort of an end—the case goes to trial, a verdict is returned, a settlement is reached, or the deal is closed. However, if you are in private practice long enough, you will eventually encounter a client whose representation must be ended before it has run its normal course. Sometimes, the reasons for withdrawal are obvious (e.g., inability to pay, conflict of interest). But sometimes, a client will not show her true colors until weeks or months have passed. Resignation (or withdrawal) as someone’s legal counsel is difficult and must be handled carefully to protect you and your (soon-to-be-former) client.
Under ABA Model Rule 1.16(a), an attorney shall withdraw from representation when: a) their representation will result in a violation of the ethical rules or another law (for example, there is a conflict of interest); b) the lawyer’s mental or physical condition materially impairs the ability to represent the client; or c) the client has discharged the attorney.
In contrast, ABA Model Rule 1.16(b) provides for when a lawyer may withdraw. These situations include, but are not limited to, when the client insists on taking action considered repugnant or in fundamental disagreement with the attorney; the client has failed to fulfill an obligation to the lawyer, and the client has been given notice of such failure; or representation would place an unreasonable financial burden on the attorney. Additionally, an attorney may withdraw if other “good cause” exists. ABA Model Rule 1.16(b)(7).
Certain clues may indicate the relationship is heading south. This begins at the initial intake. Common red flags include: the client who has had multiple lawyers, a client reluctant to pay a retainer to get started, or even a potential client that struggles to communicate with you and constantly reschedules appointments. In each of these situations, there could be a reasonable explanation. The key is to notice the warnings and understand why it is happening so that, in the future, you don’t get stuck.
As the representation continues, watch for additional danger signs. First, are you getting paid? A client unwilling or unable to pay a bill is a clear indicator to evaluate the attorney-client relationship. The decision to take a case pro bono should be the attorney’s, not the client’s.
Second, is the client verbally or physically abusive to you or your staff? Life is too short not to be treated professionally and with respect. You are often helping a client through one of the worst experiences of his or her life, but that is no excuse for abusive behavior.
Third, the client has threatened to complain to a bar. In some states, a bar complaint is not a per se conflict of interest. However, a lawyer’s desire to avoid bar discipline could cause a personal conflict limiting the lawyer’s ability to properly represent a client.
Finally, if the client is unresponsive to requests for discovery, information, or other materials or is generally unresponsive, this can severely impair an attorney’s ability to do his or her job. As an officer of the court, you have a duty to your client, but you also have a reputation, and you can be held liable in some situations for failing to respond properly. If your client is not assisting with the representation and providing you with what you need, it is time to reassess. In addition to explaining what you need, why you need it, and when you need it, document the issues and inform the client. Providing representation that is not your best because your client is not participating in his or her case is not in the best interest of this client or your future clients.
If you come to the conclusion that the relationship must be severed, remember that the goal is to withdraw quickly and without professional or business repercussions from the client, the bar, or the court. ABA Model Rule 1.16(d) states, “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.”
Appropriate notice first provides the client with an opportunity to change his or her behavior. Second, it provides the client with a warning that termination is on the horizon. Finally, notice is evidence that the attorney has behaved professionally and is not leaving the client in a bind should there be questions about the attorney’s motive or timing by the bar or a judge.
ABA Model Rule 1.16(b)(1) states that withdrawal may be made if “withdrawal can be accomplished without material adverse effect on the interests of the client.” As such, the attorney should not wait until the last minute to move to withdraw. This is beneficial to you and your client—the client has more time to find new representation, and you are able to move on. The closer a case moves to an important hearing or deadline, the less likely the court will grant permission to withdraw.
In a court proceeding, an attorney will need permission from the court to withdraw. In a transactional matter, if there is opposing counsel, the attorney will need to notify opposing counsel of withdrawal and who they can contact for further information. Withdrawing attorneys, however, cannot wholly disregard the relationship, as ABA Model Rule 1.6 provides that attorneys still have a duty to the client and must maintain the client’s confidence.
Provide clients with all information they will need to move forward on the matter. This information includes, but is not limited to the following:
If you are a first- or second-year associate working with a partner, it is unlikely that it is your place to terminate the relationship. However, you have a responsibility to speak up. You may be the first to recognize if a client is unresponsive with discovery or is particularly challenging in communication.
If issues come up that cause concern, notify the primary attorney and discuss what your role is and how to respond. If you are the litigation associate in charge of discovery, it might be appropriate to contact the client directly to tell them they are missing important deadlines and the potential consequences. Or, it could be that the primary attorney wants to handle all communications. The key is to provide the primary attorney with all information.
Always act professionally and respectfully toward your client. In many circumstances, the client understands the reason for the termination, and maintaining professionalism could result in some form of future business. After several years as a solo practitioner, a large majority of my business comes from referrals from other attorneys, friends, family, and past clients. If the client has not paid a bill because he or she ran out of money, treat that client professionally and do not embarrass him or her. And when that client’s friends or family need help, that client is more likely to give you a good recommendation.
In an ideal world, you would be a great fit for each client that walks through your door. But just as personal relationships don’t always work out, not all attorney-client relationships are a good fit. You may need to terminate a relationship. Remember that the goal is to handle the situation efficiently and professionally. Paying attention to the ethical rules and common professionalism will help get you there.
