by Whittney Dunn, Risk Manager
Thanks to Valentine’s Day, many people use the month of February to celebrate and improve their relationships with loved ones. Attorneys may also want to take this month to look at their client relationships. Much like romantic relationships, relationships with clients can take a turn for the worst if not properly managed. Luckily for attorneys, the Rules of Professional Conduct provide a handy guide to promote positive client relationships and what to do if an attorney-client relationship is beyond repair.
Rule 4-1.2(a) states that a lawyer “shall abide by a client’s decisions concerning the objectives of representation…and shall consult with the client as to the means by which they are to be pursued.” Lawyers are also required to “abide by a client’s decision whether to accept an offer of settlement of a matter.” See Rule 4-1.2(a) and its Comment [1]. These requirements can become tricky for a lawyer when the client insists on objectives or courses of action which go directly against the attorney’s advice.
A recent ethics opinion from the Philadelphia Bar Association examines the steps attorneys should take when clients refuse to cooperate with their attorneys’ advice.[1] In essence, the opinion states as follows: if your client won’t cooperate, withdraw or write it down. Which path you choose (or are required to take) in any particular representation will depend on a number of factors, but “withdraw or write it down” is a simple way to remember the proper steps when you and a client don’t see eye to eye about what to do or how to do it in a particular matter.
Withdraw
When a material disagreement arises with a client or a client refuses to cooperate with sound legal advice, you should first determine if withdrawal is required. When analyzing whether or not to withdraw from a particular representation, carefully review Rule 4-1.16 – Declining or Terminating Representation. This rule lays out the situations in which withdrawal is mandatory (see 4-1.16(a) and the Rule’s Comments [2] and [3]) and the situations in which an attorney may withdraw but is not required to do so (see Rule 4-1.16(b) and the Rule’s Comments [7] and [8]).
Even if withdrawal is not required by the rules, it is still prudent to make a determination as to whether withdrawal is permissible and, if so, whether or not that would be the best course of action in the current situation. For instance, the relationship with the client may be far enough beyond repair that withdrawal would be preferred. Rule 4-1.16(b)(4) states that a lawyer may withdraw from a representation if a client “insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” Regardless of the reason for withdrawal, be it mandatory or permissive, Rule 4-1.16(c) requires that the lawyer obtain permission of the applicable tribunal where necessary.
From a risk management perspective, the following issues should be taken into account to ensure that the withdrawal is accomplished correctly:
- Ensure that the client’s confidential information is not revealed to the tribunal in your Motion to Withdraw. Any information which could have a prejudicial effect on your client’s case, including whether or not the client is up to date on your fee payments, should not be included in the Motion. If a tribunal requires the Motion to include a reason for withdrawal, stating that “professional considerations” require termination of the representation should be sufficient. See Rule 4-1.16 Comment [3] and ABA Formal Opinion 476 for more information.
- Remember that your Motion to Withdraw does not, in and of itself, effectuate the ending of the attorney-client relationship. Unless and until the tribunal grants your withdrawal, you are obligated to continue representation of the client. See Rule 4-1.3 – Diligence and Missouri Informal Opinions 20080043 and 20000172.
- Prior to filing a Motion to Withdraw, fully explain to the client the reason for withdrawal and what rights the client has relating to the Motion (i.e., to appear and contest the Motion if she wishes). You should then confirm that explanation to the client in writing, thereby demonstrating that you have discharged your duty to fully communicate with the client.
- Regardless of the reason for withdrawal, you cannot refuse to turn over the client’s file to the client. The file is the client’s property from cover to cover, and it must be given to the client upon request. It cannot be held by the attorney to secure payment of legal fees or for any other reason. The only items which can be withheld from the client are items for which the attorney has paid out of pocket and not been reimbursed. See Missouri Formal Opinion 115 and Rule 4-1.16 Comment [9].
- After withdrawal is granted, send a closing letter to the client officially confirming the termination of the attorney-client relationship. A court’s granting of your Motion to Withdraw may not, in and of itself, terminate your duties to the client. A closing letter will ensure that the client does not attempt to hold you responsible for anything related to the representation which might occur going forward.
- Even after withdrawal has been granted and you have sent a closing letter to the client, you still have a duty to take steps to the extent practicable to protect the client’s interests. For example, if the court or another party erroneously sends information to your office as a means of notifying your client, you have a duty to forward that information to the client or the client’s new attorney. See Rule 4-1.16(d) and Comment [9].
Write It Down
If the disagreement between you and the client does not require withdrawal nor do you wish to withdraw permissively, proper client communication is essential to resolving the issue. While you, as the lawyer, are obligated to abide by the client’s decision concerning the objectives of representation and whether or not to accept a settlement offer, you are not required to let clients make those decisions without your input. In fact, you are duty bound to explain matters to clients “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” See Rule 4-1.4(b).
“Informed consent” is defined in the Rules as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” See Rule 4-1.0(e). Therefore, while a client may initially insist upon a certain course of action or minimum settlement amount, you are required to explain all sides of the issue to permit them to make an informed decision. Clients are allowed to change their minds from their initial gut reactions, and you are required to give them any information which may alter their opinions. Therefore, the first and best course of action when a client refuses to cooperate is to fully explain the reasons why your advice is actually in the client’s best interests.
If, after being provided all relevant information, the client is still unwilling to cooperate, you are required to carry out the client’s wishes. In this situation, it is prudent to document both the advice given to the client and the client’s disagreement with that advice. This documentation should take the form of written correspondence to the client and should include an explanation of the potential negative outcomes which may result from taking the client’s desired course of action. The goal of this documentation is to prevent a client from trying to hold you responsible for “buyer’s remorse” over her ill-advised decision. In fact, the Philadelphia Bar opinion notes that some strategic decisions (e.g., decisions regarding settlement) should be confirmed in a writing to the client even where the client is not taking action against the attorney’s advice.
Best Practices to Avoid Client Disagreements Altogether
While it may be true that some clients are going to be “difficult” regardless of how the attorney handles their cases, there are certain risk management steps to improve your client communications and thereby limit the likelihood of a client refusing to comply with your advice.
- There are two important steps at the beginning of any client representation that are essential to avoiding client disagreements. The first is to properly vet potential clients during the intake process, and the second is to thoroughly set client’s expectations at the beginning of the representation. A client with unrealistic expectations is unlikely to agree to a realistic settlement down the road. Such clients should be avoided if their expectations cannot be properly managed at the outset.
- Once the client’s expectations have been set regarding potential outcomes, fees/expenses, objectives, and other important matters, this information should be confirmed with an engagement letter and/or fee agreement. Your confirming document should, at a minimum, memorialize your agreement regarding the identity of your client, the scope of the representation, and the nature of the fee.
- Frequent and meaningful client communication is not only a requirement of the Rules but is also a great risk management tool. A client is much more likely to trust the advice of an attorney if she feels the attorney is truly devoted to her case. In order to ensure client communication is not a duty that slips through the cracks, it might be beneficial to utilize your calendar or case management system to set ticklers to reach out to clients at regular intervals and/or following important case milestones.
[1] Though this opinion analyzes the requirements under the Pennsylvania Rules of Professional Conduct, the applicable Rules are similar in every state because they are all based on the American Bar Association’s Model Rules.
