By Elizabeth M. Miller bio
The frequency with which a client fires a lawyer is far greater than the frequency with which a lawyer fires a client. This is because lawyers will have their firm do almost anything to keep a client. But there comes a time in every lawyer’s practice where you just cannot please that one client. It does not matter what concessions you make, how informed they are, or how you may acquiesce to unreasonable demands by the client.
When it’s time to fire the client
Before you fall prey to the “I’ll do anything to keep that person as a client” syndrome, evaluate the attorney/client relationship from the view point of your firm and whether the severance of an attorney/client relationship just may be in the best interest of your firm for many reasons.
Some clients tend to be unreasonable in their demands and expectations and regardless of how often you explain the unreasonableness of their expectations, they just do not understand. At the conclusion of the case, this client will never be a happy client. Unhappy clients spread the news faster than client who is happy with your work. In this instance, bad publicity is not better than no publicity.
Transfer the files
In all likelihood you will get a letter from the client’s new attorney advising that they have been retained to represent the client going forward. The client is entitled to a copy of their file. But that is only the attorney/client work product that they paid for. Be sure to have a lawyer or a firm administrator go through that file with a fine tooth comb removing everything that is not attorney/client work product that was paid for. Be sure to remove internal office communications regarding issues with the client, the client’s lack of cooperation, etc. These documents do not come under the heading of “attorney/client work product” and will in fact add fuel to the embers burning in the fire of an attorney/client relationship that is already going bad.
These days, most law firm files are digital, so a file can be transmitted electronically to the new firm. For this reason, if the transfer of the file can be handled paperless, I recommend emailing the paperless file at no charge to the client, requesting that the new attorney acknowledge receipt of the file.
Ask for payment of outstanding accounts
If the client owes the firm money, respond to the incoming attorney and the client advising of the balance due and request payment. Oftentimes the incoming attorney may be an ally in your firm getting paid, and the client will not want to be seen as a client who does not pay their bills.
However, if the client refuses the pay, and the new attorney does not get involved, ethically you cannot retain the file and refuse to turn over a copy. The local bar rules in each state undoubtedly have a clause in their canon of ethics prohibiting an attorney from withholding the turnover of a file if it prejudices the client. In addition to losing a client and possibly being left with an unpaid bill, you do not want to get a bar grievance in the mail alleging that you jeopardized a client’s interests.
Secure payment of your earned fees
If the case is a personal injury case that you have handled for quite some time and done work on, definitely file a charging lien with the insurance company and incoming attorney. Advise the insurance company that your firm’s name needs to be on the settlement check to ensure that you are paid your fees. In some instances, you may have to submit a time log of work done on the case together with an affidavit for payment. The court will either decide to pay quantum meruit, or, if you obtained an offer on the case, will order payment of the contingency fee and any costs owed on the amount of the settlement you obtained before the client discharged your firm.
Conclusion
Always take the necessary steps to ensure smooth transfer of the file and payment of any fees owed. As long as you can show that the representation provided to the client was exceptional and that you did everything necessary to provide zealous representation to the client, do not let the threat of a bar grievance keep you from collecting fees for the work you did. No one—not even lawyers—should be expected to work for free!
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