Firing Your Client
By Thomas P. Sukowicz
Although clients generally have an absolute right to discharge their attorneys, either with or without cause, lawyers do not have the same right. A lawyer's ability to terminate an attorney-client relationship is circumscribed by the rules of professional conduct.
There are certain circumstances under which a lawyer is required to withdraw from representing a client. Under ABA Model Rule 1.16(a), a lawyer must withdraw from representing a client when:
- the lawyer is discharged by the client;
- the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
- the representation will result in a violation of the Rules of Professional Conduct or other law.
An example of when continued representation of a client would result in a violation of an ethics rule is when an attorney knows or reasonably should know, in contemplated or pending litigation, that he or his firm may be called as a witness. Such representation would then violate Model Rule 3.7 and withdrawal would be required.
Lawyers are also permitted to withdraw from representing clients under circumstances that would not require withdrawal. The Florida Supreme Court has held that, in a civil case, an attorney has the right to terminate the attorney-client relationship and to withdraw upon due notice to his client and approval by the court, which approval "should be rarely withheld and then only upon a determination that the withdrawal would interfere with the efficient and proper functioning of the court." Fisher v. State, 248 So.2d 479 (Fla. 1971). Interference with the efficient functioning of the court would occur, for example, in a case that had been set for trial several times and the court was concerned about the age of the case, prior continuances and additional delay. Hollis v. F.B. Myers & Bro. Co., 482 So.2d 568 (Fla. App. 4 Dist., 1986).
In matters pending before tribunals, permission to withdraw may be more difficult to obtain when the client does not consent. For example, in Garden v. Garden, 834 So.2d 190 (Fla.App. 2 Dist., 2002), a marital dissolution case, a lawyer sought leave to withdraw from a case on the eve of trial, stating that his client was no longer compensating him or communicating with him. The court allowed the lawyer to withdraw, but the appellate court reversed, holding that when a motion to withdraw is heard at the commencement of a trial, the lawyer is required to establish by competent proof the basis for the withdrawal. The lawyer's statement of reasons for withdrawal is not enough. In addition, the court noted that Florida Rule 4-1.16(b) provided that withdrawal should be "accomplished without material adverse effect on the interest of the client," and that withdrawal at the commencement of the trial can seldom be accomplished without material adverse effect on the client.
Model Rule 1.16(b) and similar rules in many states impose additional limits on a lawyer's ability to withdraw, permitting withdrawal when:
- 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.
Because the attorney-client relationship is based on trust and confidentiality, a breakdown of that relationship may serve as good cause for withdrawal. In In Re Admonition, 533 N.W. 2d 852 (1995), the court found that receipt by an attorney of a letter from his client regarding a matter for which the attorney was retained stating that "this whole thing has turned into a bunch of CRAP!" constituted adequate justification for the attorneys withdrawal from representation. The court also noted that the timing of the withdrawal may be a significant factor. A lawyer who withdraws on the eve of trial or during trial must have substantial justification for withdrawal, but when the trial of a rather simple and straightforward matter is at least 6 months away, the breakdown of the working relationship between lawyer and client is ample justification.
In Washington v. Sherwin Real Estate Inc., 694 F.2d 1081 (7 Cir. 1982), an attorney was granted a permissive withdrawal when his clients refused to follow his advice to accept a settlement and instead demanded a trial. Not only was the withdrawal permitted only two days before trial, but the court also ordered the plaintiffs to proceed to trial pro se, without a recess or continuance.
Other cases have held that the general loss of confidence or trust, standing alone, will not always support withdrawal. One such case was Johnson v. State, 497 So.2d 863 (Fla. 1986), in which the defendant, accused of murder, refused to cooperate with the public defender appointed to represent him and moved to have the lawyer discharged. The lawyer also sought leave to withdraw. Denying both motions, the court stated that a trial court is obligated to examine the grounds behind a motion to withdraw and that a lawyer cannot withdraw from a case merely because his client failed to follow his advice.
"Good cause" for withdrawal generally includes the breakdown of the attorney-client relationship. The breakdown may be evidenced by a bar grievance or complaint to the agency that regulates attorney discipline. In Reed Rates Farms, Inc. v. Rates, 526 N.E.2d 115 (Ill.App., 1988), the court held that the client's filing of the ethics complaint necessitated the attorney's withdrawal because the complaint impugned the attorney's integrity by alleging the attorney deliberately misinformed the client.
Limitations on a Lawyer's Withdrawal
The Model Rules and local procedural rules contain restrictions on the manner in which an attorney may withdraw from an attorney-client relationship. For example, an attorney representing a client before a tribunal must obtain permission from the tribunal to withdraw. Representation of the client does not terminate unless and until the court, after notice and written motion, grants withdrawal. If the court does not allow the attorney to withdraw, the representation must continue.
Even if the matter is not pending before a tribunal, the ethics rules of most states provide that a lawyer cannot withdraw until he or she has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, such as giving notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules. A client may be "prejudiced" under this rule if the client is not given sufficient time to obtain substitute counsel to address pending motions or to prepare for trial.
Whether a client will be prejudiced by a lawyer's withdrawal depends on the particular circumstances of the case. In Holt v. D'HANIS State Bank, 993 S.W. 2d 237 (1999), for example, the court permitted a plaintiff's attorney to withdraw from a case without filing a response to the defendant's motion for summary judgment or obtaining additional time to respond to the motion. The court found that the plaintiff was not prejudiced because the plaintiff had more than 30 days to hire a new attorney to represent him in the summary judgement proceeding. Although the lawyer in that case was allowed to withdraw, the result may have been different if the client had presented evidence of actual prejudice.
Risk Management Tips
At the outset of the attorney-client relationship, lawyers have an opportunity to enhance their ability to withdraw from a matter when a client stops cooperating or paying fees by using an engagement letter. The letter should contain a section outlining the responsibilities of the client, including communicating with the lawyer, providing accurate information to the lawyer, being available for depositions and hearings, and paying the fees and costs as agreed. It should provide that the lawyer may suspend or terminate the representation if the client breaches any of these obligations. The client should sign the engagement letter, acknowledging that the client accepts the terms and conditions of the engagement.
Although these provisions in an engagement letter may help extricate a lawyer from the representation of a non-cooperative or non-paying client, lawyers should not wait until the eve of trial to seek permission to withdraw. In any legal matter, be sure the timing of the withdrawal affords the client sufficient time to obtain other counsel to complete the matter. Provide adequate notice with time for the client to respond.
To protect against malpractice claims and help establish the termination of an attorney-client relationship, a file closing letter should be sent whenever a matter is concluded. The letter should make it clear that no further legal services will be required from the firm unless the client separately retains the firm for those services.
Collecting Outstanding Fees
After a lawyer withdraws from representing a client, there may be fees owed by the client. Some states recognize attorneys' retaining liens on client files and property as a means to secure the payment of such fees. The law regarding retaining liens varies from state to state. Even in states that allow retaining liens, a lawyer's ability to assert the lien may be impacted by ethics rules such as Model Rule 1.16, which requires that withdrawing lawyers avoid foreseeable prejudice to the rights of clients.
Suing a client to collect outstanding fees is generally perceived as an invitation for a counterclaim for legal malpractice. As such, suits for fees should be avoided. Suing a client for fees may also have an impact on a firm's ability to obtain or keep malpractice insurance coverage, as firms that regularly sue clients for fees are perceived as more likely to draw a malparactice claim.
If a lawyer is considering suing for fees, he or she should have a lawyer who was not involved in handling the case review the file to determine whether there is any basis for a claim of malpractice or breach of fiduciary duty. In addition, lawyers should consider whether the actual amount to be recovered, after payment of attorneys' fees and costs, time away from the lawyer's practice, the ultimate amount awarded by the court, and payment of income tax on the fees received, is worth the risk of a malpractice counterclaim.