Handled properly, withdrawing from a matter can relieve stress or stem financial losses. Handled poorly, withdrawing from representing a client can make bad problems worse.
Planning ahead is the best way to avoid having to withdraw from representing a problematic client. The first step in the plan is not to take problem clients. Though you can’t always see them coming, more often than not clients who present the most challenges are easy to spot.
When screening a potential client, take note of a hesitancy to pay the fee structure you have laid out, or facts that seem not quite right, or just a generally unpleasant person. If you have a hunch the client may be more trouble than it is worth, it probably is.
But let’s face it: There are too many lawyers, not enough clients and economic pressures may compel you to take on a client you suspect may be trouble in the future. There are ways to minimize the risk should your suspicions prove to be correct.
The first way to minimize your risk is to have a clear engagement letter. By setting forth in your engagement agreement the possibility that you may need to withdraw from a matter, and the circumstances under which that would happen, a client has advance notice of that possibility and understands your expectations.
Perhaps the best way to avoid the most frequent cause of lawyers withdrawing from cases is to remember the word of Ben Affleck’s character in “Good Will Hunting”: Retainer.
Correctly assessing a client’s ability to pay is critical to avoiding fee disputes.
If you suspect a client may run out of money before the end of a case or may have difficulty paying you, get a retainer substantial enough not to leave you holding the bag should you have to withdraw.
After you have undertaken a new matter, be sure to communicate regularly with a client. Addressing problematic issues as they arise is the best way to avoid client disputes. If a client is not communicating or enabling you to represent it well, early and frequent communication clearly stating both your expectations and a client’s responsibilities will lay the groundwork to withdraw should you need to do so later.
A client who isn’t responsive is going to be hard pressed to complain when you seek to end the representation. Likewise, if a client starts falling behind in paying your bill, address it early.
When faced with the need to withdraw from a matter, or if you think you may be required to withdraw from a matter, the first thing to do is to review The Florida Bar Rule governing lawyer withdrawals. Rule 4-1.16(a) sets forth the following situations in which a lawyer shall withdraw:
• The representation will result in violation of the Rules of Professional Conduct or law;
• The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client;
• The lawyer is discharged;
• The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent, unless the client agrees to disclose and rectify the crime or fraud; or
• The client has used the lawyer’s services to perpetrate a crime or fraud, unless the client agrees to disclose and rectify the crime or fraud.
Rule 4-1.16(b) addresses the situations in which a lawyer may withdraw:
• Withdrawal can be accomplished without material adverse effect on the interests of the client;
• The client insists upon taking action that the lawyer considers repugnant, imprudent or with which the lawyer has a fundamental disagreement;
• 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;
• The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
• Other good cause for withdrawal exists.
If one of these situations arises in one of your cases, first try to get the client’s consent to your withdrawal. Often, a client with whom you have already communicated about problems will consent to your withdrawal.
When you file a motion to withdraw, be careful to adhere to your duty to maintain confidentiality. Avoid stating the exact reason for seeking to withdraw, especially if the motion is prompted by the client’s failure to pay bills or because the client is not credible or is causing other problems.
You might state that a disagreement arose regarding the direction of the litigation. A simple “irreconcilable differences have arisen” is usually sufficient. If the court requests more information, you may need to prepare a separate, more detailed supplemental declaration in camera to help avoid improper disclosure of protected or sensitive information.
Similarly, be sure to protect your client’s interests as best you can during the process of withdrawing from representation. Return all documents the client will need to advance its claims or defenses and do your best to point the client in the right direction going forward.
Clients who feel abandoned by a lawyer are more likely to complain about that lawyer — to the Bar, the public or in a legal action.
The timing of withdrawal is one of the most important factors to consider. Attempting to withdraw immediately before trial or the expiration of a statute of limitations will be frowned upon — and likely denied — by a court.
The timing of your withdrawal should not prejudice your client’s ability to hire a new lawyer or to pursue claims or defenses. Again, if you maintain regular communications with your client during the course of a case, it will be easier to recognize when the time to withdraw presents itself, rather than waiting until it’s too late.
Finally, be diplomatic and try to end on a positive note. Many problem clients really just didn’t understand how the legal process worked in the first place or how expensive it can be.
Explaining the reasons for your withdrawal and what you have done to protect the client’s interests will put the situation in the best light. Remember, how you withdraw may matter as much as why — and can help avoid complaints or malpractice claims by unhappy clients.
One of the many situations law schools do not prepare new lawyers to handle is how to successfully terminate a relationship with a client.