around the bar
January 9, 2013

Avoiding Procrastination Can Help Lawyers Dodge Disciplinary Problems with Ending Attorney-Client Relationships

Lawyers are great procrastinators, and “I say that as a great procrastinator myself,” says Paula Frederick, general counsel for the State Bar of Georgia in Atlanta. Because Frederick is disciplinary counsel, she sees how procrastination can cause problems in attorney-client relationships.

“Inadequate planning, waiting too long to realize that you don’t want to handle a case or that there is no case really to handle, or [handling matters] that come to you at the 11th hour is going to be problematic in many instances,” says Frederick in an _ CLE on the ethics of ending attorney-client relationships.

The webcast covered the four main reasons that lawyers have disciplinary problems related to the loss of a client: inadequate planning, tardiness in taking action, greed and misunderstanding of the law regarding files and fees. “Within the disciplinary process, the problems that we see really do stem from these key principles and from lawyers forgetting about the key principles,” Frederick says. “In disciplinary cases, we pretty much see that the problem begins when a lawyer puts his or her own interests ahead of the client’s interests somehow, whether that’s staying on a case too long to ensure he’s getting paid or not wanting to bite the bullet and let the client know that they have a case that has no merit.”

A lack of communication is often the underlying problem, she says. “What happens with situations where you see a lawyer in a bind because of inadequately planning his or her withdrawal is typically there hasn’t been any communication” with the client, Frederick says. “When my office receives a grievance that says this lawyer had my case for two years, the statute of limitations expires next week, and this week she has told me that I don’t have a case and she’s not going to file anything, we would consider that problematic — unless the lawyer can come back to us and say, I told her that I wasn’t certain that there was a case there. I told her that time was running out. I told her that she needed to be looking for another lawyer to handle this because I wasn’t sure I was going to be able to.”

One way you can avoid that kind of problem is at the beginning of a case, give thought to how much lead time you would need to give to your client to consult with other counsel should you decide it’s a case you don’t want to keep, says Kenneth Mogill, partner, Mogill Posner & Cohen, Lake Orion, Mich. “Calendar that, so that if you come to a point where you haven’t decided, you have your tickler on your calendar telling you it’s time to communicate with this client and say thumbs up or thumbs down,” he says. “You’re not going to get caught short. You’ve planned in advance for how much notice to give your client and you’ve got your reminder that now’s the time to make that evaluation and to communicate it to your client in a timely way.”

Mogill also advises lawyers to carefully evaluate a case before committing to it, and be aware that sometimes you may not be able to withdraw. “The court is not only entitled to, but it has a duty to take into account the rights of the other parties in the case and its own docket,” he says. “That’s going to limit your right to get out of a case if you wait too long and the court is faced with saying yes or no to you at the potential expense of the other side or wreaking havoc with its docket.”

Where you have poorly timed an attempt to withdraw, particularly where a court denies a motion to withdraw, the lawyer has an ongoing obligation to continue the representation, and not half-heartedly, Frederick says. The lawyer must “do whatever needs to be done in the best interest of the client to continue the representation,” she says. “If you tried to withdraw on the eve of the trial and the court says no, you’ve got to prepare to try the case.”

Not only should lawyers avoid last-minute withdrawals, but they should avoid clauses in their engagement letters that appear to make them seem greedy, Mogill says. The so-called “present value clause” is one such example. It claims that if the client chooses to terminate the services of the lawyer and hire a different lawyer, the first lawyer is entitled to the present value of the case as of the time of being terminated. “Of course there is no such thing as the present value before the case is settled,” Mogill says. “Present value can result in an attorney making a claim for a fee that is in excess of the permissible cap. The attorney not only will end up not getting their money but buying a grievance by trying to get too much. You’re certainly entitled to the value of the work you put into the file before another lawyer got there, but if you go beyond that and try to take too much, you’re only asking for trouble.”

Sometimes the lawyer is annoyed, and with good reason, Mogill adds: He or she has been doing a good job, and there is no obvious reason the client should want to switch lawyers. The lawyer doesn’t want to give back money to the client. “The problem is, in almost all situations, any money you’ve collected is an advanced payment of fees,” he says. “You’re entitled to what you’ve earned prior to the termination of representation, and anything else is still the client’s money, even if it’s in your trust account. And it’s your ethical obligation to return it promptly.”

It’s also your obligation to stop working on the file when the client terminates the relationship, says Michael Downey, partner, Armstrong Teasdale LLP, in St. Louis. “The lawyer may think, I’ve done a lot of work on this case, and I’ve got a right to collect a fee,” he says. “But Rule 1.16a says when a lawyer is fired, the lawyer has to stop representing the person. That doesn’t mean you’ve given up a right to get paid, but it does mean you have to stop doing the work. The needs of the client are foremost. The ability of the lawyer to get paid is something to do later.”

To access the full CLE, click here. This CLE was sponsored by the ABA Center for Professional Responsibility, Law Practice Management Section, Young Lawyers Division and the Center for Professional Development.