How To Fire a Client and Move On
By Mark Bassingthwaighte
Sometimes when a lawyer calls in , there is a despondency in the voice that comes across loud and clear . The lawyer isn ’ t always aware of it ; but usually by the time the call ends , that has changed . During such calls , lawyers have shared they feel abused , taken advantage of , threatened , or obliged to stay the course . Others have actually shared they feel victimized and almost powerless . I have come to refer to this type of call as a “ life is too short call ,” because the call always ends up being about dealing with the reality that an attorney-client relationship has completely broken down . As I see it , since that ’ s what was driving the despondency , life is too short to stay in the game . When on such a call , all I try to do is help the lawyer realize that perhaps the time has come to time fire the client and move on . After all , continuing to work in a state of despondency serves no one . This is when the conversation can get interesting .
I say this because exiting a dysfunctional relationship comes with its own challenges . It isn ’ t always easy , and the excuses must be addressed . Let ’ s start with a lawyer ’ s obligations . Some fear they can ’ t withdraw because doing so may or will adversely affect the legal interests of the client . Not true ! ABA Model Rule 1.16 Declining or Terminating Representation enumerates several factors permitting withdrawal even if doing so might have a “ material adverse effect on the interests of the client .”
Of importance here is 1.16 ( b )( 6 ), which states a lawyer may withdraw if “ the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client .” ( Emphasis supplied .) When a client ’ s actions and behaviors are such that there is a complete breakdown of the attorney-client relationship , I ’ m pretty confident in stating this rule is now in play . So yes , it ’ s okay to say goodbye to the client with ever-changing objectives , who is substantially in arrears , has become very difficult to reach , is beyond unreasonable , and who is going to have an extremely difficult time finding another lawyer willing to take over .
That said , don ’ t overlook , Rule 1.16 ( d ), which 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 to which the client is entitled , and refunding any advance payment of fee or expense that has not been earned or incurred .” While Model Rule 1.16 recognizes that a permissive withdrawal might have a material adverse effect on the interests of a client , this in no way should be interpreted as giving you permission to maximize any adverse effects . You do need to take whatever reasonably practical steps you can to try and minimize those adverse effects . Yes , I know this can be hard and , at times , doesn ’ t seem fair or perhaps right ; but this responsibility does come with the territory . Be the professional you are .
Next up is the dysfunctional relationship itself . One concern that consistently comes up is a fear of being sued or having this client file a disciplinary complaint if the lawyer tries to withdraw . I ’ m often asked what can be done to prevent that from happening . Here ’ s the honest answer . This problem client is going to do whatever he or she decides to do . There ’ s nothing you or anyone else can do to prevent them from filing a complaint or making an allegation of malpractice .
All I can say is staying in a dysfunctional relationship isn ’ t the answer and just because a claim is alleged , or a complaint is filed , doesn ’ t mean either have any merit . If this does happen , those waters can be successfully navigated . The best advice I can share is , again , life is too short . Withdraw , and once that ’ s completed , commit to remaining completely disengaged from the relationship . You actually don ’ t need to respond to any email , text , or voicemail that might follow . Remember , it takes two to have a dysfunctional attorneyclient relationship . Once you end this relationship , you ’ re out . Stay out ! Never allow yourself to get pulled back in .
Now , about the exit itself . If this is a litigated matter and you are attorney of record , you will need to seek permission to withdraw .
ALPS Risk Manager Mark Bassingthwaighte , Esq . Since 1998 , he has been a risk manager with ALPS , the nation ’ s largest direct writer of professional liability insurance for lawyers . In his tenure with the company , Mr . Bassingthwaighte has conducted over 1,200 law firm risk management assessment visits , presented numerous continuing legal education seminars throughout the United States , and written extensively on risk management , ethics , and technology . Mr . Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association , where he currently sits on the ABA Center for Professional Responsibility ’ s Conference Planning Committee . He received his J . D . from Drake University Law School .
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