By Tom Gantert
Legal News
It was supposed to be an easy divorce case. The client said everything was already agreed upon, and Jackson attorney David Lady took a small retainer.
But the case turned out to be much more complicated. The opposing counsel was aggressive and argumentative.
“They were fighting over all sorts of issues,” Lady recalled.
Lady told his client he would need more money to continue. The client said, “I don’t want to pay more.”
The attorney-client relationship ended.
“I fire clients, and clients have fired me,” Lady said.
It has happened to every attorney at one time or another. But what happens in the aftermath? What is the obligation of the attorney to the client regarding the ex-client’s file?
The state’s Michigan Rules of Professional Conduct gives some guidance.
Part of the rules state, “Upon termination of representation, a lawyer shall take reasonable steps to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by law.”
Even if the client fires the lawyer, if that lawyer is an “attorney of record,” he or she must still get court approval to be removed, said Dawn Evans, the director of professional standards for the State Bar of Michigan.
Several local attorneys said the best way to prevent attorney-client breakdowns is to be up front at the beginning.
Jackson attorney Janet Hamilton explains to her clients from the start that she may not return a phone call right away if she is working on someone else’s case. But she explains to her clients that the same rule applies when she is working on their case.
“I say, ‘When I’m on trial for you, nobody get through. So please indulge me with the others. I’m not golfing,’ ” she said.
Some attorneys say a big mistake young attorneys make is telling clients what they want to hear, which leads to big problems later when reality sets in.
“The number one thing we learn is to be brutally honest with clients as you can,” said Jackson attorney George Lyons. “And tell them, ‘Here’s where I think your case is.’ ”
Lyons, a criminal defense attorney, said many times clients have an unrealistic expectation.
“We live in a day and age of Court TV and Law & Order,” Lyons said. “They pick up pieces of law that is not applicable to their case.”
For example, Lyons said some of his clients thought they had a good case because the police lied to them.
“They say, ‘Well, the cop lied.” Well, the cop can do that,” Lyons said. “The search was wrong. It can be wrong, but still be legally admissible. You have to really give it to them and lay it on the line. … By and large, clients do respond to the cold truth.”
Jackson attorney Brad Brelinski said attorneys should be aware after severing a relationship with a client if the case has any statute of limitations attached to it.
Brelinski said if an attorney doesn’t warn the client that their claim is time sensitive, it could lead to problems for the attorney after the client realizes his case is dead.
“They could come back and sue you and you didn’t advise of them of that,” Brelinski said. “If they any potential claims, advise them it may be time sensitive.”
Sometimes a client is fired for not paying the bill. Brelinski said there is an urge to withhold a file under those circumstances, which he said is wrong.
“If the relationship is ending because of an unpaid bill, I think there is a lot of thought, ‘Well, do I hold back the file until I get paid?’ You can’t do that. You would have to turn over the information ethically and not hold it hostage in order to get paid.”
However, Brelinski and Lyons said they would not turn over any notes they took on the case to the former client.
“As a general rule, I will keep my notes. But I will go over my case with the new counsel,” Lyons said. “He has to know where he is sitting.”
Evans said if the lawyer notes would assist the new lawyer in his case, “I would think real hard whether it would be wise to hold them back, especially if it is an ongoing matter.”
There is a formal ethics opinion that states the file belongs to the lawyer, not to the client, Evans said. Clients have access to the file, but can be charged for copies.
“If the client is in the middle of a case and they would be harmed by not receiving those materials, then a prudent lawyer is going to provide those copies and worry about being paid later,” Evans said. “I know that is not always an easy thing to do.”
Hamilton said it is helpful when everyone involved in the case, including support staff, takes notes on a client.
“You should always document every single thing that happens,” Hamilton said. “No question, it helps.”
Hamilton said sometimes clients are more comfortable talking with support staff than the attorney. And sometimes, Hamilton said, she can see patterns of behavior.
“I might consider terminating the contract if they were difficult with the staff,” she said.
But Hamilton said in the handful of times she’s been fired in 30 years, it was because she stood by her unpopular assessment of the client’s case.
“I’ve always learned that when I’ve been terminated, it seems like it is because I was telling the client what I continued to believe was true, but the client didn’t want to accept it as true,” she said.
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