Oregon State Bar Bulletin — NOVEMBER 2010

Bar Counsel
Breaking Up Is Hard to Do:
How to End a Relationship, Part II
By Scott Morrill

Last month’s bar counsel column discussed some of the issues surrounding an amicable breakup of the attorney-client relationship. This column will explore the issues surrounding a strained breakup.

There are many good reasons why the attorney-client relationship could and should end and not many bad ones, at least under the Oregon Rules of Professional Conduct. Assuming that you, your client or both are no longer happy with your relationship, when and how should you terminate the relationship? Oregon RPC 1.16 sets out the minimum requirements you must meet when deciding whether and how to withdraw from representing a client. Following both the letter and spirit of RPC 1.16 will not only comply with your ethical obligations, but will hopefully minimize any client dissatisfaction, thereby avoiding a bar complaint in the process.

When Withdrawal is Warranted
Oregon RPC 1.16 discusses mandatory and permissive withdrawals, and some comment about each may be helpful. A lawyer must withdraw if the continued representation will result in a violation of the professional conduct rules. RPC 1.16(a). Withdrawal is mandatory under these circumstances. For example, if, after initiating a lawsuit, you discover that your client’s claim is completely without merit and your client instructs you to proceed anyway, you must withdraw because you cannot pursue a claim you know lacks merit. See RPC 3.1. Similarly, if you become physically or mentally incapable of continuing to represent your client, you must withdraw. See RPC 1.16(a)(2).

Oregon RPC 1.16(b) sets out situations in which you are permitted, but not required, to withdraw and essentially allows you to withdraw for any reason not otherwise prohibited. For example, you may withdraw if you feel you no longer can trust your client, if you are changing your practice focus or if your work flow makes it difficult to continue. Remember, being too busy is not an excuse for neglecting a client’s legal matter and you should withdraw if you do not have the time to devote to your client’s case. See OSB Formal Ethic Op No 2005-178.

Protecting the Client’s Interests
Assuming you have a basis to withdraw under RPC 1.16(a) or (b), Oregon RPC 1.16(d) provides guidance on how to withdraw.

First, a lawyer must take steps reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client. Withdrawing one day before trial is not reasonable notice. In re Wilson, 1 DB Rptr 225, 227 (1986). One week before trial is likely not enough, but where on the time continuum is enough is still uncertain. If you withdraw close in time to a hearing or other significant event, you should consider obtaining a continuance or delay. If the breakup is unhappy, it is very likely that your client will fault you if you withdraw too close to a pending hearing or trial. However the bar has received complaints from former clients in which the withdrawing lawyer obtained a continuance that the client did not want. Thus, in situations where you are unsure of your client’s position, you should consult with your client, as strained as that conversation may be, and determine whether he or she wants more time before you seek a set over or extension in time in the matter.

You must give the client time to find new counsel. Depending on the complexity of the legal matter and the timing, you may have to at least cooperate with possible replacement counsel. You may even be required to assist your client in finding a new lawyer. People v. Archuleta, 638 P2d 255 (Colo. 1981) (lawyer disciplined for failing to make arrangements for substitute counsel). Referring your departing client to the bar’s referral service is helpful, but may not be enough for complex cases.

You must surrender papers and property “to which the client is entitled.” RPC 1.16(d). This is often the hot button in strained breakups. Generally your client is entitled to everything in the file. Exceptions are few and specific. For instance, if you have materials from some other client’s file in the departing client’s file because the materials are helpful to your strategy, you do not (in fact, should not because of Oregon RPC 1.6 concerns) turn over those materials. See OSB Formal Ethics Op No 2005-125. You do have the right to assert an attorney fee lien over your client’s file if the client owes you for fees. See ORS 87.450. However, your lien rights must yield to your fiduciary duties to your client if your client is unable to pay your bill and the file is necessary to avoid foreseeable prejudice to your client. See OSB Formal Ethics Op No 2005-90. See also Hierschbiel, “Are Lien Rights Absolute?” OSB Bulletin (May 2006).

Several ethics opinions discuss when and how to withdraw when unpaid fees are the primary reason. See, e.g., OSB Formal Ethics Op Nos 2005-1, 2005-33, 2005-34. The theme of these opinions is that you may withdraw over fee issues, but you need to carefully follow the provisions of Oregon RPC 1.16 when doing so.

In the rare case that you have money in trust at the end of a difficult breakup with a client you are obligated to return any unused portion of these funds. While the rule sates that you should return the unused retainer “upon termination of representation,” it is somewhat silent as to the timing. It is a good idea to cut the check right away. If you wait for your regular billing cycle, you may not run afoul of the rule, but you will likely incur the wrath of your already unhappy former client. Additionally, if the client disputes whether you have earned your fee, you are obligated to keep the funds in trust until the dispute is resolved. Oregon RPC 1.15-1(e).

How to Withdraw
Oregon RPC 1.16(c) requires that you comply with applicable law relating to notice to or permission of a tribunal. The Oregon Revised Statutes provide some guidance on the process of withdrawing. ORS 9.380 allows a lawyer to withdraw, “[b]efore judgment or final determination, upon the consent of the attorney filed with the clerk or entered in the appropriate record of the court.” This looks like withdrawal when the relationship is reasonably amicable. The statute goes on to allow withdrawal, “upon the order of the court or judge thereof, based on the application of the client or the attorney, for good and sufficient cause.” In the first case permission from the court is not necessary, but in the second case permission is required. We recommend in any unhappy parting of the ways that permission from the tribunal be obtained, as it makes it harder to prove that withdrawal created material adverse effect.

Lawyers should also carefully review the UTCR’s and Supplemental Local Rules before withdrawing. UTCR 3.140 sets out what lawyers must provide on an application to withdraw, including the name, address and telephone number of the party and the new attorney, if any. You must give notice of any pending hearings and your fax number and e-mail address. The rule tells you who must receive notice and how to give it. SLR’s vary from county to county and you should consult them before determining how to present a motion to allow you to withdraw. There are also forms in chapter four of The Ethical Oregon Lawyer that may be helpful.

During a difficult breakup it is even more important to follow the rules, as your client may be predisposed to find a reason to file a bar complaint. Resist the urge to be difficult and make the effort not only to comply with the rules, but also to take extra steps that may help convince your client that you are being reasonable and a bar complaint is unnecessary.

 

ABOUT THE AUTHOR
Scott Morrill is an assistant general counsel for the OSB Client Assistance Office. He screens complaints about lawyers for ethics concerns and also gives informal ethics advice to lawyers. He can be reached at (503) 431-6344, or toll-free in Oregon at (800) 452-8260, ext. 344, or by e-mail at smorrill@osbar.org.

Ethics opinions are published and updated on the bar’s website here.

An archive of Bar Counsel articles is available here.


© 2010 Scott Morrill

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