Breaking Up Is Hard To Do: Problems in Ending Attorney Client Relationships
Scope of RepresentationAttorney client relationship usually end on civil terms, but not always. This article looks at some of the ethical and malpractice issues involved in the dissolution of attorney client relationships.
Ordinary Situations
Whether or not an attorney client relationship is ending on civil terms, it is good practice to document the end of the relationship. A concluding letter should make clear that no additional services will be provided unless the attorney and client agree. In addition, the letter should spell out any thing that the client must do to obtain the benefits of representation. For example, if an attorney sets up a corporation to obtain tax benefits, the attorney should specify that he or she will not be filing applications for status if that is to be done by an accountant. The concluding letter also affords the attorney an opportunity to let clients know about firm file destruction policies while the client’s address is still known. If an attorney client relationship is ending before conclusion of a matter, the attorney should give the client information about the status of the matter and stress the need for the client to obtain new counsel. See Texas Rule of Civil Procedure 10 (requiring a withdrawing attorney to notify the client in writing of any additional settings or deadlines after the motion to withdraw is granted.)
Dissatisfied Clients
When clients begin to express dissatisfaction with an attorney’s services, the attorney should begin to consider whether he or she may be in a conflict position.
Texas Ethics Opinion 557, released in May of 2005, discusses a situation in which a client has sought the advice of a malpractice lawyer after disagreeing with their first lawyer about settlement of a matter. The opinion notes that once a client has sought the counsel of a malpractice lawyer, the first lawyer should consider whether his or her representation of the client could be adversely affected by the first lawyer’s personal interest regarding a potential malpractice claim.
The opinion cites the language of Texas Disciplinary Rules of Professional Conduct 1.06(b)(2), which provides that a lawyer cannot represent a client if the representation “reasonably appears to be or become(s) adversely limited …by the lawyer’s or law firm’s own interests.” Rule 1.06(c) relaxes that rule only if “the lawyer reasonably believes the representation of each client will not be materially affected” and consent is obtained after full disclosure. Comment 7 to Rule 1.06 indicates that the lawyer should not seek such consent “when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances.”
In a malpractice case, the way in which continuation of representation after alleged malpractice is often portrayed is that the lawyer tried to cover up their malpractice. This can occur even if the lawyer obtains consent to further representation. It can appear that the lawyer’s attempt at fixing a situation the client finds themselves in after alleged malpractice was for the lawyer’s benefit. For example, it is not uncommon in such situations for clients to allege that the lawyer’s motive was to get more fees, or to select a course of action focused on avoiding a claim rather than solving the client’s problem timely.
Obligations After You Are Fired By A Client
Consider the following situation. Your client has fired you in a litigation matter. You apply to the court to withdraw from the case. The deadline for making a filing with the court runs before the court grants the motion to withdraw. The client then claims that you should have made the filing that would preserve their position.
A recent Ohio case Ohio addressed this issue. Smith v. Conley, 109 Ohio St. 3rd 141, 846 N.E.2d 509 (Ohio 2006). The majority opinion determined that the date the client fired the attorney was the date that the attorney client relationship ended. A dissent argued that the date the court granted the motion to withdraw was the end of the attorney client relationship. Texas courts have not faced this exact situation, but at least one case holds that the attorney-client relationship ends when the attorney withdraws. Goggin v. Grimes, 969 S.W.2d 135, 137 (Tex. App.—Houston [14th Dist.] 1998).
After you have been fired by a client, it is best to continue to make sure that no prejudice occurs to the client’s matter before you have formally withdrawn.
Maybe You Didn’t Break Up…
Withdrawal from a matter is governed both by rules of procedure and disciplinary rules. Under Texas Rules of Civil Procedure Rule 10, withdrawal is allowed only by written motion for good cause. The rule creates a number of additional technical requirements. In those situations where the client is has not secured new counsel, the Rule requires that the motion state, among other things, that a copy of the motion be delivered to the client, that the client has been notified of their right to object, whether the client agrees to the withdrawal, and all pending settings and deadlines. If the motion is granted, the attorney is required to notify the client of any additional settings and deadlines since the filing of the motion. The court may impose further conditions for withdrawal. Judicial interpretation of Rule 10 has indicated that allowing withdrawal when these requirements have not been meet is an abuse of discretion, but it may be a harmless error if the court grants the client sufficient time to obtain other counsel and that counsel has sufficient time to prepare for trial. See Baize v. Scott & White Clinic, ___S.W.3rd ___ (NO. 03-05-00780-CV Tex. App—Austin, 2007).
Disciplinary Rule 1.15 (a) requires withdrawal if a violation of other disciplinary rules would result otherwise, the attorney has become materially impaired, or the lawyer is discharged. 1.15(b) prohibits withdrawal by an attorney unless the situation meets one of 7 tests. Those tests include situations where the client will not be materially adversely affected by the withdrawal, misuse of the lawyer’s services for criminal or fraudulent purposes, pursuit of an objective that the lawyer finds repugnant or imprudent, fundamental disagreement with the client, failure of the client to meet obligations to the lawyer after reasonable warning, unreasonable burdens on the lawyer, or “other good cause.” In addition, Rule 1.15(d) requires that the lawyertake steps to the extent reasonably practicable to protect a clients interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation.
Reviewing these rules shows that there may be situations in which the Rules of Civil Procedure have been satisfied, but the Disciplinary Rules have not. While there are no published cases, we sometimes see malpractice claims where a client claims they were abandoned even though the court granted a motion to withdraw, citing a failure to assist the client as required by Rule 1.15(d). It is also possible that if a court has abused its discretion in granting a motion to withdraw, the client may later claim that the lawyer’s improper withdrawal resulted in increased costs, delays in recovery, or loss of ability to prove their case.
To avoid malpractice claims, the best practice is to withdraw as early as possible. Early withdrawal gives the client more opportunity to find new counsel and allow them to get familiar with the case. It is easier to withdraw early if clients are billed early and often-a decision can be made to withdraw before the attorney is owed so much that they cannot withdraw. Providing important documents to a client quickly also minimizes the chance that a claim will be asserted.
Attorneys Liens
When a client has failed to pay, it is not unusual for an attorney to consider holding client documents under an attorney’s lien. Texas Ethics Opinion 411, while issued under a predecessor to the current Disciplinary Rules, gives a good summary of the situation in Texas.
Even when an attorney lien can be asserted, it may not be ethical to do so. No Texas case law has directly assessed the effect of the professional obligation on attorney’s liens, As noted in Texas Disciplinary Rule 1.15(d) above, a lawyer can only retain client papers if doing so will not prejudice the client in the subject matter of the representation. In the words of Opinion 411,
Although this ethical limitation removes much of the “clout” of a retaining lien–since the greater the client’s need for his file, the greater the leverage the attorney retaining it will possess–an attorney who has once been retained to represent a client’s rights may not later precipitate actual harm to those rights merely to collect a fee.
In at least one case, a Texas attorney has been disciplined for retaining client papers. See Smith v. State, 490 S.W.2d 902 (Tex.Civ.App.–Corpus Christi 1972, writ ref’d n.r.e.), on motion to retax costs, 500 S.W.2d 682 (Tex.Civ.App.–Corpus Christi 1973), on appeal after remand, 523 S.W.2d 1 (Tex.Civ.App.–Corpus Christi 1975, writ ref’d n.r.e.)
