The Ethical Risks of Bidding Farewell to Clients

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By: The NBI Team

Tuesday, December 22, 2020

The Ethical Risks of Bidding Farewell to Clients

Nearly every attorney has had a difficult client at one time or another, but what happens when the representation becomes unnecessarily burdensome to execute effectively? Terminating representation can be an effective way to manage risk and avoid a potential malpractice claim or grievance. Still, attorneys must be cautious if they want to avoid potential ethical violations.

While requirements differ based on jurisdiction, here are some general considerations to keep in mind when withdrawing from a case.

Providing Adequate Notice to the Client

In some cases, an attorney may need to request leave from the tribunal to withdraw. They must also ensure that the client has adequate opportunity to find other counsel, and the termination of representation will not adversely affect their case. Usually, the closer to trial, the less likely the court will grant a motion to withdraw — unless the attorney has good cause.

Once the client receives notice of withdrawal, the attorney should still be aware of their obligations to the client during the transition period and make efforts to avoid adverse impact on the client.

Preventing Prejudice to the Client

While there are often specific reasons an attorney might wish to withdraw from representation, they must be careful about the details they include in their affirmation to prevent prejudice. Not only does the judge read the affirmation, but adversaries must receive copies as well.

Ensuring Attorney-Client Privilege is Maintained

In addition to avoiding prejudice, an attorney must ensure they protect privileged matters. Withdrawal can be a balancing act of knowing what information should be disclosed to the court and ensuring attorney-client privilege is maintained.

Returning the Client’s File and Any Unearned Fees Promptly

Even if a client hasn’t paid their legal fees, their file and property must be returned promptly. If there are unearned advance fees or expenses, they must also be refunded. Although an attorney may withdraw from a case, they still have the same ethical duties they would in concluding any other case.

Learn More About the Ethical Risks in Terminating Representation

If you’re looking for detailed guidance on how to withdraw from representation, check out Attorney Charles Gallagher III’s recent CLE presentation, You’re Fired: How to Ethically Terminate Attorney-Client Relationships. The course covers the rules for both mandatory and permissive withdrawals, the steps to take to avoid prejudice, duties to former clients, and more.

Looking for additional CLE courses on legal ethics? View NBI’s full catalog of recent ethics courses for more learning opportunities.

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This blog post is for general informative purposes only and should not be construed as legal advice or a solicitation to provide legal services. You should consult with an attorney before you rely on this information. While we attempted to ensure accuracy, completeness and timeliness, we assume no responsibility for this post’s accuracy, completeness or timeliness.

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