How to fire a client

This has probably never happened to you: The facts turn out to be very different than initially relayed by your client. Or a client failed to tell the truth about important details. Or, despite promises in the beginning, a client stops paying attorney fees or costs.

Sadly, in my 47-year, it has happened to me. What to do?

Fortunately, indentured servitude doesn't exist for lawyers: You can fire a client so long as you follow the rules. I have probably fired more clients during my career than most California lawyers, so I'm well aware that long-standing ethical obligations and the latest additions to the California Rules of Professional Conduct deserve special attention by lawyers seeking to terminate an attorney-client relationship.

Smart lawyers anticipate the potential for a rocky client relationship and build an off-ramp into their fee agreements. A standard provision of every engagement letter should anticipate a potential break up and set forth the parameters. In addition to stating that the client may terminate the relationship at any time, subject to granting the attorney a lien for fees and costs, the agreement should identify the attorney's right to end the representation and set forth appropriate bases for doing so. That the client fails to cooperate, misstates critical information, fails to follow the lawyer's advice, fails to pay promised fees or costs, or breaches the written contract are all common fee agreement listed items granting the right to withdraw. Since the fee agreement is a written contract subject to negotiations, and since most fiduciary obligations do not exist at this state in the relationship, you are only limited by your imagination in setting forth the potential causes for withdrawal.

Even with a clear, agreed-upon contractual basis to wave goodbye to a disfavored client, there are three basic ethical obligations that always must be observed.

First, it is axiomatic that an attorney may not withdraw from representation if the withdrawal causes foreseeable prejudice to the client's rights pursuant to Rule 1.16 of the California Rules of Professional Conduct. "First, do no harm" is not just an axiom in the medical field; we are ethically obligated to not take positions adverse to our clients' interests or act in such a way as to harm or prejudice their interests -- and this includes precipitously terminating the relationship.

Clear examples that come to mind: withdrawing on the eve of trial; resigning on the eve of a big corporate closing; or quitting during a mediation and storming out in anger. All may be completely justified, but cannot be done if your actions harm the client's rights or case. In fact, a lawyer can be subject to discipline for improperly threatening to terminate a representation. See In the Matter of Shalant, 4 Cal. State Bar Ct. 829,837 (Review Dept. 2005).

So, you must be careful in any exit to prevent harm to the client's rights. If you decide withdrawal is necessary on the eve of trial, consider obtaining a stipulation to continue scheduled dates from opposing counsel. Or if necessary, file a motion to continue the trial date accompanied by your motion to withdraw. I have found judges to be universally sympathetic in such circumstances and willing to grant requested continuances so as to avoid both "forced representations" and these ethical pitfalls.

Even if you craft a graceful way of withdrawing from representation without prejudicing the client's rights, you must be cautious about the approach you take so as to not violate duties of confidentiality, even those owed to clients who fall out of favor: "No rule in the ethics of the legal profession is better established nor more rigorously enforced that this one." Wutchunna Water Co. v. Bailey, 216 Cal. 564, 572 (1932). The confidentiality requirements are so important that they are set forth in both the Rules of Professional Conduct and the Business and Professions Code.

Business and Professions Code Section 6068(e)(1) and Rule 1.6 mandate that we maintain inviolate all of our clients' confidences, and this includes any confidential reasons for withdrawing. Not only can such confidences not be disclosed to opposing counsel, but you must be careful not to disclose any confidential information in any filed motion to withdraw. One of the new rules in the recent revisions further specifies this obligation: Rule 1.8.2 states: "A lawyer shall not use a client's information protected by Business and Professions Code section 6068, subdivision (e)(1) to the disadvantage of the client unless the client gives informed consent, except as permitted by these rules of the State Bar Act."

All of these delicate considerations were extensively discussed by the California State Bar in Formal Opinion 2015-192. I recommend this opinion as mandatory reading for anyone seeking to withdraw, especially those who are required to do so by filing a motion to withdraw. Don't even threaten to disclose confidential and harmful information in such a motion, because you can never do so.

Finally, in firing any client consideration must be given to new Rule 8.4.1, which seeks to strictly prohibit "discrimination, harassment and/or retaliation against any person." Since this new rule has yet to be tested or further defined, it suffices to say that a lawyer could face discipline if a terminated client complains that doing so was based on discrimination, harassment or retaliation. Obviously, lawyers retained by minority clients must be cognizant of this rule. This rule, by its very terms, also applies in the rejection of representation, as well as to withdrawal from an existing representation. Thus, in addition to the long-standing ethical obligations outlined above, lawyers must now be careful in accepting or withdrawing from representation to avoid even the appearance of conduct that could be claimed to amount to discrimination, harassment or retaliation.

With all these concepts in mind: Fire away! 