Materials presented at the November 17, 2011 BBA program “Terminating the Attorney Client Relationship

Terminating the Attorney-Clint Relationship; or 50 Reasons to Leave Your Client*
by Kenneth A. Reich, Esq.

The Right and Wrong Way to End A Relationship
by Stacey A. L. Best, Esq.

Terminating the Attorney-Client Relationship; or 50 Reasons to Leave Your Client*

(*with apologies to Paul Simon for the not to subtle references to his song, "Fifty Ways to Leave your Lover." Also with a nod to the MA Rules of Professional Conduct, Rule 1.16)

A. Fifty reasons, Plus or Minus, to Terminate the Relationship

1. Obey the Professional Conduct Rules, or you’ll surely lose.
2. Don’t worry if your client leaves you, there’s not much to do.
3. Leave if you’re not getting paid, but send notice well ahead.
4. End it if your client fails to cooperate, but provide notice that’s not unreasonably late.
5. If there’s fraud, get out quick, lest you end up on the short end of the stick.
6. Run if the client’s conduct is criminal, it’s not worth getting ill.
7. Consider leaving for conduct repugnant or impudent, but ask the BBO what those terms meant.
8. Unreasonable financial burden provides sufficient excuse to make arrangements to cut loose.
9. No choice, but clear excuse, if client will cause you to violate the Rules.
10. If you’re not in right health for the task, you must quit without waiting for the client to ask.
11. Make sure the client’s interests are not materially impeded, then no further cause is needed.

B. Common Reasons for Termination

The most common reasons for ending the attorney-client relationship (other than the client terminating it or the matter has ended):

1. Non-payment of fees.
-You have to make a living, and a client who continually pays late or stops paying is not a client you need to live with. You’re not a banker.

2. Non-cooperation
-The attorney-client relationship is consensual. While the client is never tied to the lawyer, the lawyer except in rare cases is never tied to the client either. If the relationship has ended for all intents and purposes, put an end to it legally.
-You can survive disagreement about tactics. That’s common. But failure to produce documents, to meet, or answer the phone, destroys the relationship and justifies your withdrawal.
-Don’t end the relationship for trivial reasons. You’re not in business to give away business. Use your best counseling skills to try to save the relationship.
-Hopefully this will be a rare event in most long careers. But you’re a professional, not an indentured servant, so end the relationship when maintaining it has become unreasonably burdensome or worse. There are no good endings to a bad attorney-client relationship.

C. The Right Ways to Terminate the Relationship

1. Follow Rule 1.16, MA Rules of Professional Conduct.
2. Always provide prior notice-written by certified mail, return receipt or the equivalent. You must make a record.
3. Cover your derriere.
4. Never withhold files.
5. Did I say follow the Rules?

D. Caveat

The court has the last say on withdrawal where the matter is in litigation. Beware the class action and the criminal case in particular - where consent may not be automatically granted.

E. Steps to Avoid the Need for Terminating the Relationship

1. It’s a rare event, so often it can’t be predicted.
2. Always get a retainer up front, unless you enjoy playing banker with your own money.
3. Keep on top of the client’s payment record and don’t let unreasonable A/R’s build up.
4. Deal right away with problems of communication and cooperation. Don’t let them fester.
5. Beware of taking on an obviously difficult client.
6. Don’t waltz into litigation without your eyes open.

F. Best Practices After you End the Relationship
1. Keep copies of key documents from the client’s file, including internal memos. You never know when you might need them.
2. Retention time: long because of the malpractice discovery rule in MA. Consider saving files electronically to save space and for better security.
3. Be reasonably prompt in returning requested files or turning them over to another attorney.
4. Never bad-mouth your client to anyone, even when you’re involved in the possible post-termination fee dispute and/or malpractice claim. The facts are the facts.
5. The attorney-client relationship requires preservation of confidentiality to your grave, with very few exceptions.

Below, from Stacey A. L. Best, ESQ:

The Right Way to Terminate the Attorney-Client Relationship

Lawyer, Susan Gnohital and various lawyers in her firm represent a client, Jessica C. W. Hapin, in a child support modification matter. A dispute arose between Hapin and Gnohital concerning Gnohital’s handling of the case. The dispute largely concerns Hapin’s failure to abide by her client’s wishes to hire a particular discovery master and to go after the father regarding discovery of his finances. Gnohital informs Hapin of the reasons for “failing to abide by her client’s directives.” Hapin continues to insist that Gnohital must follow her orders leading Gnohital to file a motion with the court to withdraw.

Hapin files a request for investigation with bar counsel claiming the above failures and adds that Gnohital has failed to produce her file and failed to turn over important material including her daughter’s health insurance card.

In her response to Hapin’s complaint, Attorney Gnohital asserts her rationale for failing to abide by her client’s directives; provides correspondence between her and Hapin and informs bar counsel that Hapin’s file is quite sizeable and seeks direction regarding producing it to bar counsel.

Relevant MRPCs

Scenario 1
-1.2(a) Scope of Representation
-1.4(b) Communication
-1.16(c), (d) and (e) Declining or Terminating Representation
-1.6(b)(2) Confidentiality of Information

The Wrong Way to Terminate the Attorney-Client Relationship

On or about July 26, 2001, a former resident of Massachusetts, John Sittenduc retained the services of the respondent, Ima C. M. Cummings, to represent him in the sale of a house located in Massachusetts. Sittenduc informed the respondent that he had originally purchased the property with his wife, who died on April 23, 1992, as joint tenants by the entirety with the right of survivorship. The client also informed the respondent that he had never probated her estate.

Because no release of the estate tax lien had been filed pursuant to M.G.L. 56C, §14, the respondent advised the client that there was a cloud on the title of the real estate. The respondent offered to probate the wife’s estate for $5,000, which would include filing estate taxes and thus permit the client to provide clear title to the buyer. The client agreed to pay the money to probate his wife’s estate to the respondent from the proceeds of the sale. The respondent conducts the closing and pays himself $5,000 per his agreement with Sittenduc.

After the closing, Attorney Cummings asked around and learned that probate of the estate was unnecessary because the tax lien would expire by operation of law ten years after the wife’s death. Cummings does not notify Sittneduc and when Sittenduc tries to contact him over the next three months to ask about the status of the case, Attorney Cummings does not take his calls.

After getting no return calls from Attorney Cummings for 3 months, Sittenduc files a request for investigation with the Office of Bar Counsel. This isn’t the first time that bar counsel has had to deal with Cummings. Ultimately, he receives a public reprimand.

Relevant MRPCs

Scenario 2
-1.4(a) and (b) Communication
-1.16(d) Declining or Terminating Representation
-1.5(a) Fees

Resources

http://www.mass.gov/obcbbo/
-The site contains articles discussing common ethical concerns and the Rules of Professional Conduct;
-The Massachusetts Rules of Professional Conduct are also on the site

-(617) 728-8750 MWF 2-4pm the Office of Bar Counsel hosts an Ethical Hotline where ABC assist lawyers navigate ethical questions.

Disclaimer: The provision of mentoring services does not contitute and shall not be considered the practice of law. The provision of such services does not establish an attorney-client relationship with the recipient of such services. Mr. Reich has a separate website for his legal practice, which can be found at www.kennethreichlaw.com.