Ending representation ethically and safely
Representation—the attorney-client relationship, which includes fiduciary duties—can be started or stopped at any time. Indeed, a client has an unqualified right to fire a lawyer whenever they want. They can do this for any reason, or no reason at all. “Because of this fiduciary relationship, ‘a client has the absolute right to discharge the attorney and terminate the relation at any time, even without cause.'” Aflac, Inc. v. Williams, 264 Ga. 351, 353 (1994), citing White v. Aiken, 197 Ga. 29, 32 (1943).
A lawyer can’t coerce a client to keep them as their lawyer
The Aflac, Inc. v. Williams case involved a contract between the company and their lawyer. The contract required the payment of a penalty if the contract was terminated. The company terminated the contract, and the lawyer filed a lawsuit seeking over $1,000,000 in damages.
The lawyer was successful in the trial court and the Court of Appeals, but the Georgia Supreme Court reversed.
A client’s discharge of his attorney “is not a breach of the contract of employment but the exercise of his right.” Dorsey v. Edge, 75 Ga.App. 388, 392, 43 S.E.2d 425 (1947). This right to terminate is a term of the contract implied by public policy because of the peculiar relationship between attorney and client. See Martin v. Camp, 219 N.Y. 170, 114 N.E. 46, 48 (1916). A client must be free to end the relationship whenever “‘he ceases to have absolute confidence in either the integrity or the judgment or the capacity of the attorney.’” Fracasse v. Brent, 6 Cal. 3d 784, 494 P.2d 9, 100 Cal. Rptr. 385 (1972) (quoting Gage v. Atwater, 136 Cal. 170, 172, 68 P. 581 (1902)).
The Georgia Supreme Court rejected the lawyer’s attempt to use economic coercion to keep the attorney-client relationship going. Many times, however, the attempt to coerce runs in the other direction, from client to lawyer…
A client can’t stop a lawyer from withdrawing
But the converse is also true: a lawyer doesn’t have to remain in the attorney-client relationship. As one wise older lawyer once said, “lawyers are not public utilities,” although many clients often believe the contrary. And, for some problematic clients, who refuse to listen to their lawyer’s advice, the only option may be to withdraw. Or there could be other reasons—payment problems, health, family, personal, merging or leaving practice areas, etc—that might prompt a lawyer to want to end the representation.
If a lawsuit is ongoing, the withdrawal must be with court approval. For detailed instructions on the required notice and procedure, see the Uniform Rules of Superior Court, Rule 4.3. A withdrawal still must also be in accordance with the ethical obligations in Rule 1.16, though. That means “taking steps to the extent reasonably practicable to protect a client’s interests….” In other words, dumping a client without giving them their file is probably a bad move, ethically speaking.
Withdrawal is not malpractice…
…in almost all circumstances. Indeed, the Georgia Court of Appeals has held “We are aware of no case which holds that attorney withdrawal with court permission and in accordance with the applicable rules can constitute legal malpractice.” Washington v. Rucker, 202 Ga. App. 888 (1992). If the client objects, they must object “at the time the withdrawal [is] sought.” Patton v. Turnage, 260 Ga. App. 744 (2003). What does this mean? Generally, if a court allows a lawyer to withdraw, no malpractice claim will be possible. Of course, court approval of a withdrawal does not give the lawyer the right to fail to, or refuse to, comply with Rule 1.16! Prior to withdrawal, a lawyer should make certain that the client’s file is organized, complete, and ready to transfer to the client or successor counsel. Many a grievance has been made against lawyers who are slow to transfer the client’s file after the lawyer withdraws.
We often encounter questions on this issue from clients who feel “stuck” with a lawyer that they do not like, or do not believe is focused, or any number of other issues. Sometimes they are surprised by the fact that yes, you can “change horses” whenever you like. Lawyers, on the other hand, know this, and it’s a motivating factor to keep up good client communication and quality service. We usually encounter questions from lawyers about how to ethically and reasonably disengage from an intractable client, or a client who’s stopped paying the bills. If you have any questions about this issue, we are happy to discuss.