Cutting The Ties That Bind . . . Sometimes Breaking Up Can Be Really Hard to Do.

It sometimes happens.  You and your lawyer are not getting along and have not been for some time.  And you have decided that you can no longer putt off the inevitable.   You have decided that now is the time to end the relationship.

Perhaps the real cause of the break-up is as it is with most breakups – money (i.e., your lawyer’s extravagances) or lack of attention (i.e., to your files). Or perhaps you have been attracted to a new law firm. Whatever the reason, you decide that rather than continuing with the present relationship, it is time to break off that relationship and move on. You only want what is rightfully yours (the files) and you are willing to pay what you rightfully owe. Simple enough, right?

Unfortunately, as with a personal relations break-up, break-ups between lawyers and their clients often are not always simple.  In my role counseling attorneys on my state’s legal ethics hotline, I get a number of questions each year from attorneys on issues that can arise as a result of break-ups between attorneys and their clients.

In addition to generating bad feelings, disputes often arise over what additional fees are due the former lawyer after notice to transfer the file(s) and who pays the costs for transferring the files. Disputes can even arise over what constitute the “file.”

Fortunately, case law and the ethics of the legal profession do offer clear guidance on some of the basics involved in transferring files from one lawyer to another. But as the old saying goes, the devil is in the details.

At the heart of the matter from an ethics standpoint is ABA Model Rule of Prof. Conduct (RPC) 1.16(d). This Rule provides that a discharged lawyer must “surrender papers and property to which the client is entitled.” ABA Formal Op. 99-414 adds that this must be done “promptly.” In other words, the former attorney may not ethically drag her feet once notified that she needs to transfer the files to another attorney. However, “promptly” is not the same thing as immediately. This raises the question of what to do about any work the former attorney does after the notice, but prior to the actual file transfer?

Therein lies one of those devilish details for RPC 1.16(d) also provides that upon notice of the termination of the relationship, the lawyer “shall take steps” to “protect a client’s interest.” Thus, it is sometimes not surprising to see a flurry of activity that suddenly takes place once an attorney is placed on notice to transfer a file – especially if one of the chief reasons to transfer a file was a lack of activity on the file.

Additional work, however, can be easily prevented or controlled. In my next blog post, I will discuss how to do this as well as the issues of who pays the costs of transferring the file and what constitutes the clients’ file.

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