Do you have a file in your office that you can’t stand to look at? One that sits languishing on your desk or credenza with a deadline fast approaching, yet you can’t seem to start working on it?
Unwanted files are a major cause of ethics complaints and legal malpractice claims. Most lawyers seem to have at least one, usually connected to a client the lawyer no longer wants to represent.
To free yourself from this potentially dangerous situation, gather your courage, take a stand, and fire your problem clients. The first step is to identify the clients and cases you should let go.
Whom Should I Fire?
Some lawyers can easily identify their “dog” files. Others may find this task more difficult. Whether or not you think you know your “dog” files, it never hurts to stop and thoughtfully evaluate your caseload three or four times a year. Try to make it a regular, quarterly practice. When you do, ask yourself if any of these situations sound familiar:
Involuntary Pro Bono
Whether the client couldn’t come up with your retainer at the beginning of the case or somewhere along the way became delinquent, involuntary pro bono cases are a bad idea. When you continue working for a client who is not paying your bill, you are sending the message that you are not worth the fee you charge. This practice not only emboldens the non-paying client, it is also demoralizing and financially damaging to you, your family, and your staff. Instead, establish specific billing and accounts receivable practices, spell them out clearly in your fee agreement, and enforce the rules. These situations rarely get better, and the longer you stay on the case, the harder it will be for you to withdraw.
The Very Bad, No Good, Difficult Client
Also known as the client you have come to despise. You know who they are: The client who tracks down your home phone number and calls you on the weekend for non-emergency matters. The client who makes a habit of dropping by your office unexpectedly. The client who complains about every bill and pushes the limit by paying late or at the last possible moment. The client who won’t listen to your advice and fails to cooperate in keeping appointments, providing documents, or answering questions. The client who wants to be your co-counsel. The client who is rude to you or your staff.
Letting this client go will lift your spirits and instantly lower your stress level. Keeping this client may lead to an ethics complaint or a legal malpractice claim, since this file is generally the last to be worked on, if it receives any attention at all. Learn to spot (and fire) this type of client early in the case. Better yet – avoid representing this client in the first place.
Don’t Try To Be a Hero
Even when you get along famously with your client, and finances are not an issue, some matters simply aren’t worth keeping (or taking on). If your favorite client has talked you into helping him or her with a matter that is outside your area of expertise, heed the red flag.
Many a legal malpractice claim can be traced back to a lawyer’s initial bad judgment in accepting a case that should have been declined. When friends, family, and long-time clients apply pressure, many lawyers succumb to the hero syndrome, believing they can save the day. Resist this temptation. You wouldn’t suggest that a loved one see a dermatologist for chest pains. The practice of law is no different. Act in your client’s best interests and match him or her with the right professional. This advice holds doubly true in the case of friends or family, where the combination of inexperience plus lack of objectivity and client control can spell trouble. You can never go wrong by directing your potential client to the right practitioner. As the friend, family member, or long-time lawyer, you can then assume a more fitting role: remain associated with the matter – if appropriate and helpful – or lend moral support. But leave the primary representation to the capable, disinterested colleague who is best suited to handle it.
How Do I Fire My Client?
Oregon Rule of Professional Conduct (ORPC) 1.16(b) specifically permits a lawyer to withdraw from representation if:
- Withdrawal can be accomplished without material adverse effect on the interests of the client. ORPC 1.16(b)(1).
- The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement. ORPC 1.16(b)(4).
- The client fails substantially to 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. ORPC 1.16(b)(5).
- The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client. ORPC 1.16(b)(6).
- Other good cause exists. ORPC 1.16(b)(7).
Any one of these grounds, in addition to others listed in ORPC 1.16(b), is sufficient. To withdraw from representing the non-paying client, the difficult client, or the case better left to another practitioner, read ORPC 1.16(c) and (d) then follow these steps:
- Give reasonable notice to the client.
- Allow time for employment of other counsel.
- Surrender papers and property to which the client is entitled. [Lawyers who inappropriately seek to enforce attorney fee liens over client files, withhold file contents, or charge clients for file copies risk an ethics complaint or a legal malpractice claim. See Difficult Paradigm: Are Lien Rights Absolute? and Client Files Revisited: More Light on a Topic That Won't Go Away.]
- Refund any advance payment of fees or expenses that have not been earned or incurred. See How Much Do I Owe You? “New” Guidelines for Fixed and So-called Nonrefundable Fees.
- Comply with applicable law requiring notice to or permission of a tribunal to withdraw.
- Do not reveal the basis for the withdrawal to the court unless disclosure is permitted by one of the narrow exceptions in ORPC 1.6(b). Read and understand Oregon Ethics Opinion 2011-185.
Take other appropriate action necessary to protect the client’s interests.
In addition, you should:
- Confirm the termination in writing.
- Avoid commenting on the merits of the case. Since you are terminating representation before conclusion of the matter, advise the client generally that time limitations may or do apply, and stress the need to hire another lawyer immediately.
- Keep a copy of any documents returned to the client and preserve your file for at least 10 years.
- Cooperate fully with the client’s new legal counsel, if any. Provide that person with a complete copy of the file.
- Ensure a substitution of counsel is timely filed with the court by the client’s new legal counsel.
A Final Word
Reviewing your caseload three or four times a year will help you identify and promptly withdraw from problem cases. Take the wisdom you’ve gained and apply it the next time you are screening a new client or matter. If unpaid fees are a perennial problem in your practice, contact a practice management advisor for suggestions on how to keep on top of overdue accounts. And above all, stick with it! Your vigilance is the key to successfully avoiding or withdrawing from the “dog” files.
All Rights Reserved – Beverly Michaelis (2013)
Updated and excerpted from How to Fire a Client: Dos and Don’ts When Ending Representation.