"I'll cross that bridge when I get there." Some attorneys take this approach in addressing termination of employment issues with their clients. It is, unfortunately, a short-sighted approach that can lead to harsh results for both attorney and client, including severe prejudice to the client's case, attorney-client suits and client complaints to the State Bar.
Numerous attorney-client issues and disputes can develop at the time of an attorney's termination or withdrawal. Common termination/withdrawal issues raised by attorneys calling the State Bar's ethics hotline include: mandatory and permissive reasons for withdrawal; accounting for fees and costs; refund of unearned attorney fees; disposition of trust funds and client files; ongoing responsibilities for client matters; and professional liability.
Attorneys should visualize a "bridge" that must be crossed when an attorney's representation ceases. This bridge represents the transition period between active representation and the end of representation on the client's particular matter; it represents the winding down of the attorney-client relationship. To cross the bridge successfully, an attorney must meet professional obligations owed to the client and must address and resolve any outstanding termination issues or disputes with the client.
An attorney's best approach to crossing the end-of-representation bridge is to build it with the client over the course of representation. This allows both attorney and client an opportunity to anticipate, address and resolve termination issues, and helps both achieve more realistic, mutual expectations regarding when and how their relationship will end.
Ideally, termination issues should be addressed with the client at the inception of the attorney-client relationship. A few attorneys find such up-front discussion difficult and potentially detrimental to their relationship with the client. However, most attorneys find it far easier to discuss and resolve termination issues up front, when their attorney-client relationship is amicable, than after an issue or dispute has arisen and their relationship is strained.
Termination issues can be raised tactfully, with the client understanding that initial discussion of termination issues is common practice and will help facilitate a successful attorney-client relationship. Following discussion, attorneys should try to reduce all joint understandings to a signed writing. This writing can be used later to remind the client what was agreed upon, and provides a road map for termination of employment that protects both the attorney and client.
Some termination issues attorneys might consider addressing with their clients include:
David M.M. Bell is the director of professional competence, planning and development for the State Bar.