Through the right client intake procedures, most incompatible clients can be avoided. However, on occasion, irreconcilable differences can pop up and with irreconcilable differences come risks of withdrawing from a case.
If you need to withdraw from a case, it is critical to attempt to minimize the possible adverse effect on the rights of the client and the possibility of prejudice to the client. The manner and means of terminating a relationship can affect the likelihood a malpractice claim will be filed.
Considerations when Withdrawing from a Case
Even when a withdrawal is justifiable, a lawyer should:
- Give due notice of withdrawal
- Suggest engaging other counsel
- Deliver all papers and property to which the client is entitled
- Cooperate with counsel subsequently employed
- Attempt to minimize the possibility of harm to the client
- Refund the client any compensation not earned during the employment
Do not procrastinate once a problem materializes or becomes inevitable. Very few problems serious enough to motivate withdrawal crop up overnight.
When a serious problem is first recognized, it should be discussed with the client and memorialized in writing. If that does not resolve the issue and withdrawal appears to be the only course, advise the client again in writing and stress the need for the client to obtain new counsel.
Avoiding a Malpractice Claim due to Risks of Withdrawing from a Case
To attempt to prevent a malpractice claim, try to have the client sign a substitution of attorneys, and only make the motion to withdraw if further delay would jeopardize the client’s case.
When making the motion, take care to avoid disclosure of attorney-client communications or set forth any information that would weaken the client’s case or provide undue leverage to the opponent.
In addition to any formal procedures that must be followed, send a disengagement letter confirming the reason for the termination, address any remaining fee issue and set forth any upcoming deadlines or procedural requirements which will have to be addressed by the client or successor counsel.
The disengagement letter serves the added purpose of establishing the outside date for the commencement of the applicable statute of limitations period for malpractice claims. In drafting the letter, bear in mind it will be an important exhibit should a claim be brought against you. The letter should be professional, dispassionate, clear and accurate.
Before sending the file, make a paper or electronic copy of the entire file. A letter describing the contents of the file should accompany the file, and the client or successor counsel should be asked to sign and date an acknowledgment of receipt of the material. If not covered in your engagement letter, the disengagement letter should also advise the client how long you will retain the file before destruction.
While it is impossible to eliminate the risk of one day facing a malpractice claim, proper client intake procedures and careful handling of withdrawing from a case can dramatically reduce the risk to you and your firm.
Because of the fiduciary and ethical duties of an attorney, it is best to identify and reject high-risk clients before representation begins. With a proper system of intake reviews, conflict of interest checks, staff supervision and intake form management, you can reduce your risk of facing a costly and damaging malpractice claim.