Dumping Your Client Could Get You Sued:

Withdrawing as Counsel:  What California Attorneys Owe Their Clients

It is an unfortunate truth in business: sometimes, despite best intentions at the outset of a professional relationship, a client and her service provider will need to part ways. These breakups could be due to incompatible communication styles, disagreements about strategy, fee disputes, or a host of other reasons. In most industries, when such issues arise, either party is free to terminate the relationship, walk away, and move on to more fruitful pursuits.

Not always so in the legal profession. Attorneys have an ethical duty to act in the best interests of – and minimize harm to – their clients, and this obligation continues even where the attorney client relationship has fundamentally broken down or the client is not paying the lawyer for his services. And where a client is involved in an ongoing lawsuit and does not expressly consent to her attorney’s withdrawal, the attorney must obtain a judge’s consent before ending the representation. See Cal. Code Civ. Procedure § 284.

On what grounds may an attorney withdraw from representing a client in active litigation, without a client’s consent? California Rules of Professional Conduct, Rule 3-700 lists the specific grounds, including, for example: where the client seeks to pursue an illegal course of conduct, where the client breaches an agreement to pay attorney fees, or where the lawyer’s mental or physical condition renders effective representation unreasonably difficult. To prove to the court that one of these grounds exist, lawyers may be inclined to take a “kitchen sink” approach to withdrawal motions. For example, an attorney may wish to attach to his withdrawal motion some attorney-client emails to demonstrate a breakdown in communication; or a list of outstanding invoices to show nonpayment issues; or a declaration explaining, in his own words, certain client demands that the attorney believes are unreasonable.

This would be a grave mistake and would violate California attorney ethics requirements. Rule 3-700 warns that an attorney “shall not withdraw from employment until [he/she] has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client [and] allowing time for employment of new counsel…”. Further, an attorney must at all times maintain lawyer client confidentiality to protect a client’s confidential information , as required under Rule 3-100(A) and California Business and Professions Code §6068(e). As discussed by the California State Bar’s Standing Committee on Professional Responsibility and Conduct, the duty of attorney-client confidentiality “may prevent or limit an attorney from testifying in detail even about the circumstances of a confidential communication where doing so would disclose client ‘confidences’ or ‘secrets.’”  Formal Opinion No. 2015-192 (emphasis added).

As such, a withdrawing attorney faces a difficult dilemma: he must disclose enough information to convince a court of the need to withdraw, without sharing any information that is confidential or may prejudice the client. Recognizing this sticky situation, California’s professional ethics Standing Committee has opined that “ordinarily it will be sufficient [for an attorney] to say only words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney-client relationship.” Formal Opinion No. 2015-192. See also Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 591 (holding “[w]here as here the duty not to reveal confidences prevented counsel from further disclosure and the court accepted the good faith of counsel’s representations, the court should find the conflict sufficiently established and permit withdrawal.”) These rules have a counterpart in the American Bar Association’s Model Rules, Rule 1.16, which states that “[t]he lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.”

Could an attorney provide more detail to the court while also satisfying his ethical obligations by submitting confidential client information directly to the judge’s private chambers (“in camera”), so that the opposing side and the public cannot see it? The answer is still no: attorneys are prohibited from revealing attorney client privileged communication, even during an “in camera” hearing. See Formal Opinion at p. 6. This remains the case even where a court orders an “in camera” filing, and under those circumstances the ethics Standing Committee advises that an attorney request that his withdrawal motion be transferred to another judge, in order to prevent prejudice to the client that may otherwise arise if the trial judge (e.g. the one to decide/ preside over the merits of the case) were to assess the privileged information. Id. at pp. 9-10.

If an attorney’s withdrawal motion is ultimately denied, the attorney must avail himself of other avenues, such as appeal or other further review of a court’s order. See Formal Opinion No. 2015-192. Once these alternative avenues have been exhausted, the attorney must “evaluate for herself the relevant legal authorities and the particular circumstances…and reach her own conclusion on how to proceed,” while at all times keeping in time the impact of her choice on the client. Id.

Simply put, duties of a lawyer to his client must be forefront in his mind during any attempt to terminate a client relationship, regardless of how justified a withdrawal may be. Striking an ethical balance between competing obligations and goals may be difficult for the attorney, but is required under California law to ensure client protection at all stages of a representation. source

Dumping Your Client Could Get You Sued

Abandoning your client in the middle of litigation is a good way to get sued for malpractice.

It happened recently, where a lawyer is defending a malpractice claim that alleges he dumped his client when an insurance suit turned sour.

The malpractice complaint alleges negligence and breach of fiduciary duty. Specifically, it says the lawyer:

• Failed to inform his client of the possible consequences of their actions;
• Provided very little communication throughout the litigation process;
• Failed to adequately explain what was going on in the case;
• Instructed the client not to talk with experts who had been sent to inspect the property, but then submitted an inspection report that erroneously stated they had actually met to go over the storm damage;
• Submitted expert reports that contained boilerplate language and identified the client as the “homeowner” even though it was a commercial building;
• Sought damages that had already been paid in a separate claim;
• Continued to press for millions of dollars without the client’s informed consent.

Can My Attorney Quit?

Can My Lawyer Refuse to Continue with My Case Unless I Pay in Full?

Attorney Client Agreement

The first place to look for issues regarding representation when a lawyer has not been paid is in the client agreement that he or she has in place and that the client signed. This agreement may state how the lawyer will be paid and when the lawyer can withdraw from representation. There may be a clause that states that failing to pay for the lawyer’s fees in a timely manner may be a breach of contract.

Position Contrary to Client

One reason why a lawyer may not be required to represent a client who has not paid is because this situation can make the lawyer be in an antagonistic position to the client. If the lawyer is owed money, he or she may have a right to sue the client. He or she cannot realistically be opposed to the client and provide proper representation in his or her case.

Professional Rules of Conduct

The rules of professional conduct may discuss permissible reasons for a lawyer to withdraw as counsel. One common reason is because the client has not paid the bill. Lawyers are not expected to work without compensation. The professional rules of conduct may permit the lawyer to withdraw when he or she will not be negatively impacted by the withdrawal or if there is a suitable replacement that is willing to take on the case.

The professional rules of conduct often allow the lawyer to abandon the client even in some situations when it may harm the client’s interests. For example, many states allow a lawyer to withdraw if the client is engaged in a continuing criminal enterprise, attempting to use the lawyer’s services for illegal activity or if the client has refused to cooperate in the representation.
The rules may require the lawyer to provide reasonable warnings and opportunities to pay the bill before the lawyer can withdraw from the case. These rules often encourage the lawyer to work with clients until the legal issue is fully resolved.

However, they also balance the client’s interests and recognize that requiring the lawyer to continue on may not be in the client’s best interests and when getting a new lawyer would be the better option.

Judge’s Permission

Typically, a lawyer must get the judge’s permission before he or she can withdraw from a case. A judge is less likely to approve the withdrawal if the client will be prejudiced or otherwise adversely affected by the lawyer’s withdrawal, such as if the case is close to trial. A lawyer makes a motion to be relieved as counsel before he or she will be permitted to stop working on the case. He or she cannot simply refuse to pass along information or act on the client’s behalf simply because the judge has not yet granted the motion. The court can refuse to honor the request to withdraw. If the court does grant the motion to withdraw, the client may have additional time to find new counsel.

Prejudicing the Client’s Position

The court is less likely to allow withdrawal if withdrawal would materially prejudice the client’s ability to litigate the case. This may be the case when a trial is imminent. Additionally, the court may not honor the request to withdraw if the facts giving rise to the request to withdrawal are in dispute. The court may have an evidentiary hearing to resolve the matter.

Lawyer’s Duties

If a lawyer does withdraw from a case, he or she still has ongoing duties. For example, he or she must maintain client confidentiality. Additionally, if the lawyer has any of the client’s property, he or she must return it. He or she must provide the client’s file upon request and cooperate with the transfer process.

Legal Assistance

Individuals who would like more information on a lawyer’s duties may wish to contact a lawyer for assistance. They should have a firm understanding of the lawyer’s duties and his or her own responsibilities during the legal process. Ethical matters may be implicated if a lawyer withdraws from a case in a way that causes adverse effects to the client. source