Ending the Attorney Client Relationship: Ethical...

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Ending the Attorney‐Client Relationship: Ending the Attorney Client Relationship: Ethical and Fiduciary DutiesBest Practices to Avoid Ethics Violations and Malpractice Claims

T d ’ f l f

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

THURSDAY, AUGUST 11, 2011

Today’s faculty features:

Kim M. Jackson, Partner, Hawkins Parnell Thackston & Young, Atlanta

Michael P. Downey, Partner, Armstrong Teasdale, St. Louis, Mo.

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Breaking Up Is Hard to Do Breaking Up Is Hard to Do Breaking Up Is Hard to Do Breaking Up Is Hard to Do ––The Ethics of Terminating The Ethics of Terminating

Client RelationshipsClient Relationships

5

Kim M. JacksonHawkins Parnell Thackston & Young g

LLP4000 SunTrust Plaza

303 Peachtree Street N E303 Peachtree Street, N.E.Atlanta, GA 30308

Office: 404-614-7400iDirect: 404-614-7525

Facsimile: [email protected] @ p y

http://attorneydefender.com

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Reasons the Attorney / Client Relationship is EndingRelationship is Ending

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1. Attorney is Fired by the CliClient

The Attorney’sThe Attorney s Obligations

• Return property and funds

• Return client’s file• Prevent prejudice to e e t p ejud ce to

client• Get paidp

8

Rule 1.16 Declining or Terminating g gClient Relationship

“(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:shall withdraw from the representation of a client if:

* * * *

(3) the lawyer is discharged.”

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Return Client’s PropertyReturn Client s Property• Rule 1.15

• (d) . . . Except as stated in this rule or otherwise ( ) ppermitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that thethird person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

10

Hold In Trust Property In DisputeHold In Trust Property In Dispute

• Rule 1.15(e):( )

• When in the course of representation a lawyer is p yin possession of property in which two or more persons (one of whom may be the lawyer) claim interests the property shall be kept separate byinterests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.

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When Property Is In DisputeWhen Property Is In Dispute

C 4 R l 1 15 [A l h d• Comment 4 to Rule 1.15: [A lawyer may have a duty to protect a claim to money held in escrow.] In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolved. A l h ld t il t ll t bit t di t b tlawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute.

• Protect your claims and third-party interests by holding the propertyD t th l f bit t• Do not assume the role of arbitrator

• File an interpleader if necessary

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Rule 1.16 Declining or Terminating Client Relationship

Check Your Local Rules!Check Your Local Rules!

In Litigation – The Court Is in Charge

(c) A lawyer must comply with applicable law requiring i i i f ib l h i i

( ) y p y pp q gnotice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representationfor terminating the representation.

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Rule 1.16 Declining or Terminating Cli R l i hiClient Relationship

• Avoid prejudice to the client.p j

• (d) Upon termination of representation, a lawyer ( ) p p yshall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client allowing time for 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. The lawyer may retain papers relating to the client to the extent may retain papers relating to the client to the extent permitted by other law.

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Comment 9:

[9] E if h l h b f i l di h d b h [9] Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law See security for a fee only to the extent permitted by law. See Rule 1.15.

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2. The Attorney Has a Conflict of IInterest

• The duty to constantly y yevaluate the potential for conflict.

• Does the conflict requireDoes the conflict require termination of other attorney-client relationships?relationships?

• There is no right to pre-waiver of conflicts.Wh t t b l d• What must be revealed and must remain confidential?

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Rule 1.7 Conflict Of Interest: Current Clients

Client-Lawyer Relationship

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:conflict of interest. A concurrent conflict of interest exists if:(1) the representation of one client will be directly adverse to another client; or(2) there is a significant risk that the representation of one or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

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Rule 1.6 Disclosure Adverse to Client

Comments[9] A lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's personal responsibility to comply with these Rules. In most situations, disclosing information to

h d i ill b i li dl h i d f h l secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(4) permits such disclosure because of the importance of a lawyer's compliance with the Rules of Professional Conduct.y p

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Duties To Multiple ClientsDuties To Multiple Clients

• If the representation is being terminated due to a conflict of interest with anotherdue to a conflict of interest with another existing client, does the conflict require you to withdraw from bothyou to withdraw from both representations?

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Pre-Conflict Waiver AgreementsPre Conflict Waiver Agreements• Waivers of some foreseeable conflicts may not y

be made in advance, depending on jurisdiction.

• Examples:– Anticipated: multiple clients, limited fund for

settlement can prospective agreement on division ofsettlement – can prospective agreement on division of available settlement funds bind clients?

– Anticipated: Multiple defendants, course and scope i ld i ti tissues could arise – can prospective agreement require clients to allow attorney to stay with one client in the case

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Rule 1.6 Confidentiality of Information


(a) A lawyer shall not reveal information relating to the grepresentation of a client unless the client gives informed consent, the disclosure is impliedly authorized in p yorder to carry out the representation or the disclosure is permitted by paragraph (b).p g p ( )

21

Conflicts With Prior ClientsConflicts With Prior Clients

• Rule 1.9

• (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent

th i th b t ti llanother person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the a e ate a y ad e se to t e te ests o t eformer client unless the former client gives informed consent, confirmed in writing.

22

Conflicts With Prior ClientsConflicts With Prior Clients• Rule 1.9

• (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm ywith which the lawyer formerly was associated had previously represented a client

• (1) whose interests are materially adverse to that person; Conflicts With Prior Clients

and • (2) about whom the lawyer had acquired information

protected by Rules 1.6 and 1.9(c) that is material to the ttmatter;

• unless the former client gives informed consent, confirmed in writing.

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Conflicts With Prior ClientsConflicts With Prior Clients• Rule 1.9

• (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerlymatter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

• (1) use information relating to the representation to the di d t f th f li t t th R ldisadvantage 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

• (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.p

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3. There is a Cloud or Threat of L l M l iLegal Malpractice

• Keep a copy of yourKeep a copy of your file.

• Give file to client (what can you keep?)

• What can you ydisclose?

• What to do to resolve dispute?

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Can’t Prospectively Limit LiabilityCan t Prospectively Limit Liability

• Generally, attorneys may not limit liability for malpractice in representationfor malpractice in representation agreements.

• Georgia FAO No. 05-8• Georgia Rule 1 8 (h): Forbidden “ unless• Georgia Rule 1.8 (h): Forbidden …unless

permitted by law and the client is independently represented by counsel.”independently represented by counsel.

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Keep A Copy Of FileKeep A Copy Of File

• You cannot prejudice your client’s legal matter but you can take hold file amatter, but you can take hold file a reasonable time to make a copy.

• You cannot refuse to provide file to client.

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What Can You Refuse To Give CliClient

• Client may not be entitled to all material in file e g attorney notes work productfile, e.g., attorney notes, work product memos, documents created in anticipation of legal malpractice claimof legal malpractice claim

• Depends on jurisdiction

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Attorney Self Defense And P i ilPrivilege

• Attorneys often face a conflict between defending claims or i d i i i li fidaccusations and maintaining client confidences.

• The rules regarding client confidentiality allow the attorney g g y yto defend him/herself without violating ethical rules, but they do not permit unlimited disclosure. Standard: Reasonableness

C id h li ’ i– Consider the client’s interests;– Reveal only what is necessary; and – Limit disclosure to necessary parties and the least harmful

di i h liconditions to the client.

• The Model Rules of Professional Conduct permit i d fa vigorous defense.

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The Power To Defend OneselfThe Power To Defend Oneself

• Rule 1.6 and general rules about privilegeRule 1.6 and general rules about privilege and confidentiality may not be used by client to prevent lawyer from protecting his p y p gor her own interests.

• Attorney is entitled to defend against (and prosecute) claims of wrongdoing made by p ) g g yclient or third-parties, even if it means revealing confidential information.

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Rule 1.6(b)(5)Rule 1.6(b)(5)

Rule 1.6(b) A lawyer may reveal information Rule 1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the li bli h d f i i l h client, to establish a defense to a criminal charge or

civil claim against the lawyer based upon conduct in which the client was involved, or to respond to which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

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Rule 1.6(b)(5)Rule 1.6(b)(5)

• “…to establish a defense to a criminal charge or civil …to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved…” – This provision does not require the criminal allegation or

civil claim be brought by the client.

• “… or to respond to allegations in any proceeding concerning the lawyer's representation of the concerning the lawyer s representation of the client…”– The confidentiality exception does not depend upon the The confidentiality exception does not depend upon the

client’s involvement in the proceeding.32

Rule 1.6 Defense CComments

• Comment 10 – “…Where a legal claim or disciplinary charge alleges complicity

of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or

h di d b b d ll dl other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together.” have been defrauded by the lawyer and client acting together.

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Rule 1.6 Defense CComments

• Comment 10 continued– The lawyer's right to respond arises when an assertion of such

complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion The right to defend also applies of has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.

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Rule 1.6 CommentsInforming the Client and Informing the Client and

Limiting Access to the Information• Comment 14Comment 1

– Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client's interest should be no greater than the glawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner h li i h i f i h ib l h that limits access to the information to the tribunal or other

persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicableto the fullest extent practicable.

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Supporting Litigation/Ethical G idGuidance

Available case law favors the rights of the attorney establish defenses to accusations of wrongdoingaccusations of wrongdoing.

• S.C. Bar Advisory Op. 94-23– Attorney under investigation by SSA may reveal such confidential information to

respond to or defend against the allegations• Ill F A d I f O N 94 10 (11/94)• Ill. For. And Inf. Op. No. 94-10 (11/94)

– Attorney permitted to reveal client confidences to defend himself from accusation of wrongful conduct in support of a motion for new trial.

• S.C. Bar Advisory Op. 94-24d b l l l l f d– Attorney terminated by a legal services agency may reveal client confidences in an

appeal of the Director’s decision to the agency board.• Mass. For. and Inf. Op. No. 96-4

– Attorney may reveal client confidences could be revealed as necessary to stave of a i i l i dicriminal indictment.

• ABA formal Op. 01-424 and Ala. For. and Inf. Op. RO-00-01– Attorney may pursue a wrongful discharge claim against her former corporate

employer.S C B E hi Ad i O • S.C. Bar Ethics Advisory Op. 98-38

– Attorney may appear in Bankruptcy Court and reveal confidences as necessary to defend against client’s discharge of attorney’s claim for fees. 36

Questions?Questions?Contact Kim Jackson

(404) 614-7525(404) 614 [email protected]

Ha kins ParnellHawkins Parnell Thackston & Young LLP

With offices in:With offices in: Atlanta

Austin, TXCharleston, WV

Dallas, TXLos Angeles CALos Angeles, CA

San Francisco, CASt. Louis, MO

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of Professional Conduct

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Rule 1.6 – Comments ContinuedRule 1.6 Comments ContinuedDisclosure Adverse to Client Cont…

[15] Paragraph (b) permits but does not require the disclosure of information relating to a client's representation to accomplish the purposes specified in paragraphs (b)(1) through p p p p p g p ( )( ) g(b)(6). In exercising the discretion conferred by this Rule, the lawyer may consider such factors as the nature of the lawyer's relationship with the client and with those who might be i j d b h li h l ' i l i h injured by the client, the lawyer's own involvement in the transaction and factors that may extenuate the conduct in question. A lawyer's decision not to disclose as permitted by paragraph (b) does not violate this Rule Disclosure may be paragraph (b) does not violate this Rule. Disclosure may be required, however, by other Rules. Some Rules require disclosure only if such disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3. Rule 3.3, on p g p ( ) ( ), ( ), ,the other hand, requires disclosure in some circumstances regardless of whether such disclosure is permitted by this Rule. See Rule 3.3(c).

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Rule 1.6 – Comments ContinuedDisclosure Adverse to Client Cont…

[12] Other law may require that a lawyer disclose information about a client. Whether such a law supersedes Rule 1 6 is a question of law beyond the scope of these Rules Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of information relating to the representation appears to be required by other law, the lawyer must discuss the matter with the client to the extent lawyer must discuss the matter with the client to the extent required by Rule 1.4. If, however, the other law supersedes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are necessary to the lawyer to make such disclosures as are necessary to comply with the law.

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Rule 1.6 – Comments ContinuedA ti C t tl t P Acting Competently to Preserve

Confidentiality[17] Wh n tr n mittin mm ni ti n th t in l d [17] Wh n tr n mittin mm ni ti n th t in l d [17] When transmitting a communication that includes [17] When transmitting a communication that includes information relating to the representation of a client, the information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended information from coming into the hands of unintended information from coming into the hands of unintended information from coming into the hands of unintended recipients. This duty, however, does not require that the recipients. This duty, however, does not require that the lawyer use special security measures if the method of lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. communication affords a reasonable expectation of privacy.

l h ll h lp p yp p y

Special circumstances, however, may warrant special Special circumstances, however, may warrant special precautions. Factors to be considered in determining the precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to include the sensitivity of the information and the extent to include the sensitivity of the information and the extent to include the sensitivity of the information and the extent to which the privacy of the communication is protected by law which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by lawyer to implement special security measures not required by lawyer to implement special security measures not required by lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this of communication that would otherwise be prohibited by this Rule.Rule.

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Defending Non-Client Charges(h k li li b dd d)(hockey goalie clip to be added)

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• Inform the client – Give the client the

opportunity to make the disclosure.

• Limit the disclosure to th ti the necessary parties only.– Not required if the q

attorney can establish that such safeguards were either “not practicable” or would “prejudice the lawyer’s ability to establish the ydefense.”

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Rule 1.7 Conflict Of Interest: Current Clients Continued…


(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:client if:(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;each affected client;(2) the representation is not prohibited by law;(3) the representation does not involve the assertion of a claim by one client against another client represented by the claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and(4) each affected client gives informed consent, confirmed in (4) each affected client gives informed consent, confirmed in writing.

44

When it’s Time to Say “Good-Bye”T i i f li l i hiTermination of Client Relationships

45


“(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:”

(1) withdrawal can be accomplished without material accomplished without material adverse effect on the interests of the client;h lithe client;

46

“(b) Except as stated in paragraph (c) a lawyer may (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:”

(2) the client persists in a course of action involving the lawyer's action involving the lawyer s services that the lawyer reasonably believes is criminal or fraudulent;

47


(3) the client has used the lawyer's i i services to perpetrate a crime or

fraud;

48

“(b) Except as stated in paragraph (c), a lawyer may ( ) p p g p ( ), y ywithdraw from representing a client if:”

(4) the client insists upon taking action that the lawyer considers yrepugnant or with which the lawyer has a fundamental disagreement;disagreement;

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“(b) Except as stated in paragraph (c), a lawyer may i hd f i li if ”withdraw from representing a client if:”

(5) the client fails substantially to fulfill an obligation to the lawyer fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

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“(b) Except as stated in paragraph (c), a lawyer may ( ) p p g p ( ), y ywithdraw from representing a client if:”

(6) the representation will result in an unreasonable financial burden

h l h b on the lawyer or has been rendered unreasonably difficult by the client; or

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(7) other good cause for i hd l iwithdrawal exists.

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Ending the Attorney‐Client Relationship: Ending the Attorney‐Client Relationship: Ethical and Fiduciary DutiesEthical and Fiduciary Duties

PRESENTED BY MICHAEL DOWNEY

Michael Downey

Partner, Armstrong Teasdale LLPgAdjunct Professor, Washington

University School of Law

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Michael P. DowneyAttorney at LawArmstrong Teasdale LLP7700 Forsyth Blvd.St. Louis, MO 63105(314) 621-5070 main(314) 342-8072 direct(314) 482-5449 [email protected]

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4. The Client Will Not Pay4. The Client Will Not Pay4. The Client Will Not Pay4. The Client Will Not Pay

• Rule 1.16(b) Except as stated in paragraph (c), a lawyer may ithd f ti li t ifwithdraw from representing a client if:

(1) withdrawal can be accomplished without material adverse effect on the interests of the clienton the interests of the client;

. . . (5) the client fails substantially to fulfill an obligation to the lawyer

regarding the lawyer's services and has been given reasonableregarding the lawyer s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial ( ) pburden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.

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Keys to Terminatingf N P

Keys to Terminatingf N Pfor Non‐Paymentfor Non‐Payment

• Legal and ethical issuesLegal and ethical issues− Contract – What does the engagement

agreement say?− Malpractice – Will claims result?− Fiduciary – Will duties be breached?− Ethical – Do Rules permit withdrawal?

− Court – Will court permit withdrawal? Rule 1.16(c)

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How to Get OutHow to Get OutHow to Get OutHow to Get Out

• Document the problem early and oftenDocument the problem early and often− Provide clear notice of problem− Set a deadline for paymentSet a deadline for payment− Also require a retainer going forward

• Seek release early in matterSeek release early in matter

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Suit to Recover FeesSuit to Recover FeesSuit to Recover FeesSuit to Recover Fees

• Assess amount of fees that might be recovered – is it worth it?g• Exhaust non-litigation options• Discuss potential suit with everyone at the firm who worked on

the file• Review relevant documents

Assess the file internall for s bstance and b siness process• Assess the file internally – for substance and business process issues

• Subject the file to independent reviewj p• Communicate with your LPL insurer• Consider waiting for the statute of limitations to run

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Best ResponseBest ResponseBest ResponseBest Response

• Avoid fee disputes at the front endAvoid fee disputes at the front end− Engagement agreement

• Scope of representationp p• Fees that will be charged• Interest• Right to terminate for non-payment

− Client expectations and communications− Documenting problems

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When Termination Is NecessaryWhen Termination Is NecessaryWhen Termination Is NecessaryWhen Termination Is Necessary

• Make a clean break – with lots of warningMake a clean break with lots of warning− Protect client -- what is status, and what must be

done right away− State how file will be handled− Remind client of unpaid fees

• Review situation to avoid problems in future prepresentations

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What Clients Don’t Pay?What Clients Don’t Pay?What Clients Don t Pay?What Clients Don t Pay?

• Cannot payCannot pay− Did you perform due diligence?

• Will not pay− Did you perform due diligence?− Did you perform due diligence?− Why not?

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What Happens to FileWhat Happens to FileWhat Happens to FileWhat Happens to File

• Majority rule – client, even non-paying client, controlsMajority rule client, even non paying client, controls the file

• (Small) minority rule – firm may withhold the file to ( ) y yobtain payment

• What are risks of withholding the file?

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5. The Client Is Behaving Improperly5. The Client Is Behaving Improperly5. The Client Is Behaving Improperly5. The Client Is Behaving Improperly

• Typical problemsTypical problems− Chronic issues

• Failure to cooperate, communicate, and the likep , ,• Normally treated similar to non-payment

− Acute issues• May require withdrawal• May spur desire to withdraw

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Rule 1.16 on Acute ProblemsRule 1.16 on Acute ProblemsRule 1.16 on Acute ProblemsRule 1.16 on Acute Problems

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or where representation has commenced shall withdrawclient or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the rules of professional conduct or other law; . . . .

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer's services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

64

repugnant or with which the lawyer has a fundamental disagreement;

Concerns for Acute IssuesConcerns for Acute IssuesConcerns for Acute IssuesConcerns for Acute Issues

• Lawyer cannot be drawn into client’s improper y p pconduct – Rule 1.2 and 8.4

• Client needs to warn client of possible consequences of misconduct

• Lawyer may need to avoid disclosing client’s misconductmisconduct− Review Rule 1.6 (and 3.3 if appropriate)− “Noisy withdrawal”

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Noisy withdrawal

Recovery of Fees after TerminationRecovery of Fees after TerminationRecovery of Fees after TerminationRecovery of Fees after Termination

• Who caused the termination− Lawyer -- likely fees are forfeited unless termination was “with

justifiable cause”• Threatened perjury• Threatened perjury• Accusations lawyer is dishonest• Filing of disciplinary complaint against lawyerg p y p g y• Refusal to pay fees rightly owed• Refusal to communicate with lawyer• Break-down of lawyer-client relationship -- caused by lawyer• Employment of new (co-)counsel who effective replaces prior

counsel

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Recovery of Fees After Termination (cont)Recovery of Fees After Termination (cont)Recovery of Fees After Termination (cont)Recovery of Fees After Termination (cont)

• Who caused terminationWho caused termination − Client -- often lawyer can recover unless “serious

misconduct”• Restatement 37 -- engaging in “clear and serious

violation of duty” results in forfeiture of some fees

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Terminated Representation ‐‐Measure of Terminated Representation ‐‐Measure of FeesFees

• Work completed -- look to contractWork completed look to contract• Work not completed -- look to quantum meruit

− Sometimes lesser of fair value of services and ratableSometimes lesser of fair value of services and ratable proportion of agreed fees

• Is contingency satisfiedg y• Can lawyer prove entitlement to fees

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Beware “Convertible” FeesBeware “Convertible” FeesBeware Convertible FeesBeware Convertible Fees

• Compton v. Kittleson (AK 2007)Compton v. Kittleson (AK 2007)− Lawyer took case on contingency− If case were settled for an amount that failed to payIf case were settled for an amount that failed to pay

lawyer $175 per hour, then fee was hourly

− Alaska Supreme Court invalidated fee agreement

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6. The Lawyer Is Leaving the Firm6. The Lawyer Is Leaving the Firm6. The Lawyer Is Leaving the Firm6. The Lawyer Is Leaving the Firm

• When lawyer leaves firm, clientsWhen lawyer leaves firm, clients− Go with lawyer − Stay at firmStay at firm− Transfer to another lawyer− All of the above -- or some combination thereofAll of the above or some combination thereof

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Departing Lawyer’s ConductDeparting Lawyer’s ConductDeparting Lawyer s ConductDeparting Lawyer s Conduct

• Announce intended departure to firmp• Coordinate notice to impacted clients

• If firm ignores, notice must be given

• Notice− Fact of departure− Choice of client to stay with firm move with lawyer or opt forChoice of client to stay with firm, move with lawyer, or opt for

another lawyer− No defamation or the like

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Client’s PropertyClient’s PropertyClient s PropertyClient s Property

• Client follows instruction of clientClient follows instruction of client− Fair to ask for some written proof from client of

instruction

• Other property (such as trust funds) should follow p p y ( )files or be refunded

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WithdrawalsWithdrawalsWithdrawalsWithdrawals

• If firm is out, firm should insist lawyer provide noticeIf firm is out, firm should insist lawyer provide notice of departure

• If lawyer is out, lawyer should seek to have motions to withdraw filed− Relationship controlled by “reasonable belief” of client− Best to avoid lingering conflicts or malpractice

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Possible Claim for Share of FeesPossible Claim for Share of FeesPossible Claim for Share of FeesPossible Claim for Share of Fees

• Vance v. Griggs (Mo 2011) recognizes claim for feesVance v. Griggs (Mo 2011) recognizes claim for fees earned based upon work performed at firm, but received after departure

• Consider separation agreement

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ClosingClosingClosingClosing

• Michael P. Downey• Attorney at Law• Armstrong Teasdale LLP• 7700 Forsyth Blvd.• St. Louis, MO 63105• (314) 621-5070 main(314) 621-5070 main• (314) 342-8072 direct• (314) 482-5449 cell• [email protected]

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Ending the Attorney Client Relationship: Ethical...

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