Ending Attorney-Client Agreement

SUMMARY

Sometimes the attorney client relationship does not work out and should be terminated before the conclusion of the representation.

The gist is that if either party ends the attorney client agreement prematurely, and the attorney is not officially named as the client’s attorney in formal proceedings, the termination can be accomplished by writing that the attorney-client agreement is ended by either the client or attorney.

However, if the attorney is named as the client’s official attorney in proceedings before the court, the attorney only ceases being the client’s attorney upon one of two events: (1) a valid substitution of attorney form is completed, dated and signed by everyone necessary, and then filed and served on all necessary people; or (2) the court orders that the attorney is no longer the party’s attorney.

DETAILS

Reasons for the Client to Terminate the Attorney-Client Relationship during proceedings, like a civil lawsuit

Despite the best intentions, sometimes the attorney client relationship does not work out. From a client’s perspective, this can happen when the attorney does not agree with the legal strategy of the client.

Although, this blog is not about respective responsibilities in an attorney-client agreement, it is worth remembering that the client is entirely responsible for testifying truthfully and accurately when required, searching for and producing documents, authorizing offers of settlement, if any, reviewing and timely accepting or rejecting offers from the opposition, if any, proceeding to trial, if necessary.

Meanwhile, believe it or not, the attorney actually has numerous areas where the attorney has all or almost total control and discretion in litigation. These include deadlines and extensions, use of discovery techniques, selecting evidence and witnesses.

Where the attorney and client disagree on an area of the other’s respective control, that can sometimes be a basis for a client to want to terminate the relationship.

Reasons for Attorney withdrawal

Reasons for attorney withdrawal fall into one of two categories: mandatory, meaning that the attorney must withdraw from the representation, and permissive, where the attorney can, but is not necessarily obligated from withdrawing from the representation.

When continued representation would mean that the attorney is forced to break a law, break a rule of ethics, that the client’s intent is improper like pursuing a totally frivolous lawsuit or lying under oath, when the attorney physically cannot perform, or the client has terminated the attorney, the attorney must withdraw.

However, there are other occasions, when the attorney is not obligated to withdraw, but, the attorney is allowed to withdraw. Those occasions include: (1) when the client fails to pay as agreed, thereby breaching the attorney-client agreement; (2) when the client pursues a claims with just the minimum legitimacy; or (3) when the attorney-client relationship has become unreasonably difficult or there is a near total break down in communication.

Just saying the relationship is over doesn’t end it, if the matter is in the middle of a proceeding

If the attorney is representing the client in a proceeding, and the attorney is the client’s official attorney in that proceeding, just saying the attorney-client relationship does not officially end it.

In a civil lawsuit, after the attorney has formally become the client’s attorney, the attorney client relationship ends only if: (1) a valid substitution of attorney form is completed, dated and signed by everyone necessary, and then filed and served on all necessary people; or (2) the court orders that the attorney is no longer the party’s attorney.

So, if both sides agree that the attorney client relationship should end, they just need to sign, date, file and serve a substitution of attorney form.

The trick to the substitution of attorney form, somebody needs to be named as a new attorney

So, that is a trick to the substitution of attorney form. Some person needs to be named as the new attorney.

If the client is a person, and not a business entity, the client can be named as the new attorney. However, the client will then be totally responsible for the case. Moreover, even if the client is not an attorney, the client will be held to the standard of an attorney. That means if the client asks the court for forgiveness of a harsh result caused by the client’s error because the client is not experienced, the court can and likely will not forgive that mistake.

Also, if the client is an entity, the client cannot represent itself. That is because an entity, like a corporation, limited liability company, or other similar entity has a separate legal existence that its owners. If the owners are not attorneys, they are forbidden from practicing law on behalf of that third party, the entity.

So, this leaves the ironic situation, where the client may even want a new attorney, but won’t sign the substitution of counsel form if it names that client as the new attorney.

The outgoing attorney is not required to find the client a new attorney

Contrary to belief, the outgoing attorney has no duty to find the client a new attorney

All the outgoing attorney needs to do is (1) not prejudice the client; and (2) provide the client file

Also contrary to popular belief, the outgoing attorney does not need to initiate or complete new tasks between the time it becomes clear the attorney client relationship should end, and when it formally does end.

All the outgoing attorney needs to do is (1) not prejudice the client; and (2) provide the client file.

Not prejudicing the client depends on circumstances. If discovery responses are due, if filings are due, if court appearances are set, the attorney must either meet those deadlines or secure extensions between the time it becomes obvious the attorney client relationship will end, and when it formally ends.

At all times, the outgoing attorney must provide a first set of copies of documents in the operating file to either the client or the new attorney. The operating file includes all formally filed papers in the case, draft written discovery responses, to the extent prepared, if pending responses are due, offers and rejections of offers to settle. The basic rule of what must be released is any document that is reasonably necessary for representation.

However, the operating file does not necessarily including pure notes and mental impressions of the attorney.

Contrary to belief, the Attorney is not obligated to continue to work for the client

Clients sometimes believe that they can control the attorney and force the attorney to work for the client.

This is generally incorrect. True, the attorney must perform any task that is required not to prejudice the client. However, if a task is not due yet, and there is no imminent deadline for that task, the client cannot force the attorney to perform that task, when it is clear the attorney client relationship will end, but before it has ended.

This includes seeking discovery. Discovery is the formal process whereunder written answers to written questions and documents are sought from opposing parties. When the attorney-client relationship starts to deteriorate, sometimes the client starts to demand that the Attorney get discovery from the opposing side. If there is no pending discovery deadline, the attorney simply has no duty to do that work.

Contrary to belief, the Attorney does not have to return the deposit, if any, before the formal end of the relationship and can bill for all time spent on the matter, even billing disputes and motions to be relieved as counsel

Clients sometimes believe that they will get their deposit back after it is clear that the attorney client relationship will end, but before that relationship formally ends. Usually this is incorrect.

Sometimes the client believes that they will not have to pay for services after it is clear that the attorney client relationship will end, but before that relationship formally ends. Usually this is incorrect.

Sometimes, the attorney will offer to return the entire deposit, or the entire remaining deposit, and forfeit some earned fees to motivate the client to sign the substitution of attorney form.

This can cause the client to start to demand the deposit, before the substitution of attorney form is filed and served. This can also cause the client to start consuming the attorney’s time making the relationship unpleasant. These are not wise tactics, as will be described.

Repeatedly demanding the deposit back, after the attorney explains multiple times that the deposit will be returned only after the formal end to the attorney client relationship can support the attorney’s argument that there has been a complete breakdown in communications.

Repeatedly demanding that the attorney do work that the attorney explains there is no need for or no deadline for can support the attorney’s argument that there has been a complete breakdown in communications.

Threatening to make a bar complaint if the attorney does not return the deposit before the formal end of the relationship or if the attorney does not perform work that the client asks for but the attorney explains is not necessary can support the attorney’s argument that there has been a complete breakdown in communications.

The client cannot force the Attorney to work for the Client, the Attorney can motion to be relieved

Contrary to popular belief, the client cannot force the attorney to continue to work for the client. If the client refuses to sign the substitution of attorney form, the attorney can file a motion to be relieved as attorney, a declaration supporting that motion and a proposed order.

The bare minimum of facts are required to support that motion, such as the attorney-client relationship has become unreasonably difficult. Case law has held that the attorney cannot be forced by any judge to reveal any client confidences, including to justify relief.

So, as this author understands, if the attorney motions to be relieved, that motion is almost certain to be granted. If the client has not found a new attorney, then the client will become his or her own attorney, and be totally responsible for the case if the court grants the motion for the attorney to be relieved as counsel.

This attorney is uncertain what happens if an attorney motions to be relieved as attorney of a business entity, where that business entity does not have a new attorney.

CONCLUSION

It is in the best interest of both parties, the client and the attorney to be cordial, even after it is clear that the attorney client relationship will soon formally end.

It is of little benefit to the client to demand the deposit, if any back, before the formal end, to demand the attorney do work that the attorney has said is not necessary now, or threaten the attorney with a bar complaint. That conduct does not help retain the attorney or motivate the attorney to continue to work for the client. If the attorney is forced to motion to be relieved as counsel, the attorney merely needs to conclude that communications have broken down.

However, if the client makes a subsequent bar complaint, the attorney is allowed to show the bar the client communications in defense of the bar complaint. So, those demands and threats only undermine the client’s own interest.

Want to print your doc?
This is not the way.

Try clicking the ⋯ next to your doc name or using a keyboard shortcut (

CtrlP

) instead.