PROFESSIONALISM CORNER
Joined at the Hip for Life
JEFFREY LAMPERT
Clients often [ wishfully ] think once a lawyer is retained for one matter , representation will cover all the client ’ s ’ concerns [ and without paying additional fees ]. Since misunderstandings may result in letters to The Florida Bar , lawyers should take care to ensure that clients know and understand that representation has concluded .
Rule 2.505 ( f )( 3 ) Rules of General Practice and Judicial Administration ( RGPJA ) establishes by rule when representation in Court proceedings has ended : 1 ) a written order of the court after hearing upon a motion ; 2 ) substitution of counsel ; 3 ) termination of an action or proceeding and expiration of any applicable time for appeal when no appeal is taken , without any further action of the court unless otherwise required by another rule of court ; 4 ) post-judgment appearances are terminated in non-criminal cases upon filing of a notice of termination of appearance and in criminal or juvenile cases upon entry of a written order of the court after hearing upon a motion setting forth the reasons for withdrawal ; ( 5 ) when limited appearances are permitted , by filing a notice of termination of limited appearance ; and ( 6 ) conclusion of a hearing or proceeding in which an attorney has appeared as stand-in counsel .
Prior to the RGPJA , representation of a client did not have a definitive conclusion , other than by order of Court . Rule 2.505 ( f ) ( e ) applies only to cases in which the lawyer was attorney of record .
Otherwise , the Rules of Professional Conduct , establish duties of attorneys upon conclusion of legal representation .
A lawyer must take all reasonable steps to mitigate the consequences of termination of representation of a client , even if the lawyer has been unfairly discharged by the client . [ Comment to Rule 4-1.16 Declining or Terminating Representation ].
If a lawyer has served a client over a substantial period in a variety of matters , the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal . Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer , preferably in writing , so that the client will not mistakenly suppose the lawyer is looking after the client ’ s affairs when the lawyer has ceased to do so . [ Comment to Rule 4-1.3 Diligence ].
For example , if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal , the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter . See Rule 4-1.4 ( a )( 2 ). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client . [ Comment to Rule 4-1.3 Diligence ].
To avoid misunderstandings on the part of the client , the better practice is to be as specific as possible as to what is and is not contemplated in the initial written fee agreement .
Once representation has concluded , the attorney should express the cessation of representation by separate communication after the fact .
Upon termination of representation , a lawyer shall take steps to the extent reasonably practicable to protect a client ’ s interest , 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 . Rule 4-1.16 ( d ).
Restrictions upon an attorney ’ s ability to engage in representation against a former client are imposed by Rule 4-1.9 Conflict of Interest ; Former Client , which relates to all representation , and not just litigation matters . A lawyer who has formerly represented a client in a matter must not
PBCBA BAR BULLETIN 16 afterwards : ( a ) represent another person in the same or a substantially related matter in which that person ’ s interests are materially adverse to the interests of the former client unless the former client gives informed consent ; ( b ) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known ; or ( c ) reveal information relating to the representation except as these rules would permit or require with respect to a client .
Also of concern is a duty of loyalty to a client and avoiding even the appearance of impropriety . In Brent v . Smathers , 529 So . 2d ( Fla . 3d DCA 1988 ), the Court sought to graft duties of loyalty and avoiding appearances of impropriety to Rule 4-1.9 . However , the term “ appearance of impropriety ”, formerly found in Canon 9 of the Code of Professional Responsibility , is not found in the Code of Professional Conduct , which replaced the Code of Professional Responsibility January 1 , 1987 .
The Third DCA later declined to graft concepts of “ loyalty ” and “ appearance of impropriety ” to Rule 4-1.9 of the existing Code , stating such a substantive change would have to come from the Florida Supreme Court . Alters v . Villoldo , 230 So . 3d 115 ( Fla . 3d DCA 2017 ).
In short , a lawyer ’ s duty to a client never ends .