When It’s Time to “Fire” a Client, Protect Yourself

Episode Notes

Transcript

Dave Scriven-Young:

Hello everyone and welcome to Litigation Radio. I’m your host, Dave Scriven-Young. I’m a litigator practicing environmental and construction law in the Chicago office of O’Hagan Meyer, and I also coach young lawyers on how to accelerate their careers without burning out on the show. We talk to the country’s top litigators and judges to discover best practices in developing our careers, winning cases, getting more clients, and building a sustainable practice. Please be sure to subscribe to the podcast in your favorite podcasting app to make sure that you’re getting updated with future episodes. This podcast is brought to you by the litigation section of the American Bar Association. It’s where I make my home in the A BA. The litigation section provides litigators of all practice areas, the resources we need to be successful advocates for our clients. Learn more at ambar.org/litigation. As litigators, we love our clients.

Without them, we wouldn’t have anything to do. But what happens when that relationship goes sour? Today we’re diving into a topic many attorneys grapple with when and how to fire a client. We’ll discuss the ethical rules, best practices and potential risks of withdrawing from representation as well as strategies for handling disputes that arise after withdrawal. And today’s guest is Michael LeBoff. He is a partner in the Newport Beach, California office of Klein and Wilson. Michael has over 25 years of business trial practice handling and winning high stakes trials and arbitrations. He was formerly in-house litigation counsel for a CC Capital Holdings, the parent company of a large nationwide financial services company. And as in-house counsel, he managed nationwide litigation and learned the importance of billing efficiencies and litigation results. He’s a longtime leader in the ABA Litigation Section and currently serves on the sections governing council. Michael, welcome to the show.

Michael LeBoff:

Hey, thank you for having me, David.

Dave Scriven-Young:

Great. Well, let’s talk about some context here. There are clients who fire their lawyers and lawyers who fire their clients. So let’s talk about clients who fire their lawyers. Why would they do that?

Michael LeBoff:

Yeah, so we get calls all the time. We do a significant amount of legal malpractice work and clients regularly call about complaints with their attorneys, and those complaints run the gamut of things cost too much. Attorneys are not aggressive enough, attorneys are not regularly communicating with their clients, and sometimes this comes into the clients are just unhappy with the legal system, how long it takes, how expensive it is, and the only person they can really blame sometimes is the attorney that they have. So oftentimes with respect to clients terminating their lawyers, it really comes down to managing the client’s expectations in terms of what to expect in the legal system. But it also comes down to not unlike dating, sometimes clients just think they see a new lawyer, they think this relationship’s going to be better. Somebody sweet talks them into thinking that they can get a better result or get it quicker or get it cheaper and they decide to make a change. I think the important thing for attorneys to remember is when you do get fired by a client, it doesn’t necessarily mean you did anything wrong, that you’re a bad lawyer, that’s somehow your fault. Sometimes these relationships don’t work out and clients are very picky on who they choose as their lawyers.

Dave Scriven-Young:

Let’s talk about a little bit about communication because when I was in law school, I interned for the Illinois Disciplinary Agency that oversees lawyers, and I think the number one issue that we’ve seen and complaint that we saw over the years was certainly communication lawyers just not regularly communicating with their clients. What are some best practices that you use to make sure that you’re communicating with your clients, Michael?

Michael LeBoff:

Yeah. Well, I think the number one thing to do is email makes it so easy to communicate with your clients, and if disputes arise later, it’s always good to have those communications in writing. So things I always try to communicate to my client are strategy, this is the approach we’re going to take, these are the depositions we’re going to take, or these are the things we’re not going to do. I always like to communicate to the client in writing costs, this is what things are going to cost. And really try to use those communications again to manage the expectations of the client and keep them informed about what’s going on with their case. Now sometimes for lawyers, we have cases that they go dark for a while and there may be a four or five month window where we’re really not doing anything. And in those situations I really try to drop the client an email maybe once every month or six weeks or two months, depending on the length of time just to let ’em know I’m still there.

Motion is still pending with the court, we’re still waiting to get that result back. I’ll check in a couple months, something like that, just so the client knows that you’re still there, you’re still working on their case, you’re still paying attention to them. And then the last thing I would say that’s really important is this is not a substitute for getting on the phone and talking to your client, but if you do have a substantive conversation with your client, I would always encourage lawyers to follow that conversation up with an email just summarizing what you discussed and what the parties agreed to again, so there’s no confusion at the time and no confusion down the road should a dispute arise.

Dave Scriven-Young:

Yeah, that’s really great advice. Now let’s look at it from the other side. Why do lawyers fire their clients?

Michael LeBoff:

Well, unlike clients who have many, many reasons for replacing lawyers, for the most part, lawyers fire their clients. It comes down to money. Now, there may be some situations where the lawyer’s, physical or emotional state prevents them from continuing the case. Maybe they retire or the client wants to do something unethical. But in my experience, when disputes arises, it’s almost always about money. Usually the client not paying their bill. Sometimes in contingency fee cases, maybe the lawyer and the client are not on the same page in terms of the value of their case and the client is not taking the lawyer’s strong advice on a settlement, but that tends to be the main reason why I see lawyers firing their clients generally comes down to money.

Dave Scriven-Young:

Do you have any thoughts in terms of billing practices and things of that nature to make sure that you are, I guess, communicating value to a client? Because I think oftentimes clients don’t necessarily understand what lawyers are going to do, what they’re going to bill for don’t really understand, they’re just getting a, and I’m talking about not a large corporation obviously, but maybe if you’re representing an individual or a small business for example, those folks wouldn’t necessarily have a lot of contact hopefully with an attorney. And so if you have a litigation case for the first time, may not understand the full scope of what it means when you have an attorney represent you either as a plaintiff or as the defendant. So what are some best practices in making sure that you’re showing a client that you are providing them value for the fee that you’re charging them?

Michael LeBoff:

Yeah, David, that’s a great point. I think for most clients, unless they’re regularly involved in litigation that they really don’t have any understanding as to how expensive this is. And when you’re billing several hundred dollars an hour, even a thousand dollars an hour that some firms are billing, the litigation fees can get very high very quickly. Some of the best practices I would recommend is one, sending your bills out regularly. This usually is not an issue for large firms, but typically small firms, sometimes you get behind on your bills and then you send a bill for two or three months to the client and they’re looking at a very huge bill that they weren’t expecting. It also comes down to communicating to the client before you take on a significant amount of work, let the client know what that might cost so they can approve it in advance.

When they do that, it’s very hard for clients to backtrack in terms of the legal fees, but the other point I would make on fees is once a client starts to fall behind on their bills, you want to address that early. Sometimes it’s a matter of they don’t have the money anymore or they’re not willing to pay it, and you want to at that point withdraw from the case. Sometimes clients who are not paying their bills are not paying their bills because they’re unhappy with the services they’re being provided or the communication or the results, and that’s the time to have a conversation with your client to address those issues before they really mushroom into a much larger dispute that gets a second lawsuit that comes on down the road.

Dave Scriven-Young:

So let’s think about a lawyer who’s in a law firm. You’re running into some billing troubles with your clients and you’re thinking about withdrawing from a case. What are some risks or adverse consequences that may crop up when a law firm withdraws or thinks about withdrawing?

Michael LeBoff:

So when a law firm withdraws from a case, it’s rarely a good thing for the client, at least initially. The first step is if you want to withdraw and the client won’t agree to let you out, you have to file with the court a motion to be relieved as counsel. And in that motion you have to explain to the court in a very delicate way without breaching your duty of confidentiality, why you’re asking to be let out. And I think when judges in the other side see this, they make certain assumptions. Typically it’s going to be either the lawyer doesn’t think the case has merit or the attorney thinks that the client is not paying their bill or not honoring their obligations. So those implied inferences, they’re not evidentiary, but I think they do have a negative impact on the clients. So the motion shouldn’t be filed lightly.

It also is expensive when clients have to bring on a new attorney, they have to learn the case. Sometimes they have to do this on the fly because you have deadlines pending, trial dates coming, and you lose a lot of the institutional knowledge about a case that attorneys acquire throughout their services and some of that you cannot get by reading the file or the emails or the pleadings. And then obviously it puts the client in a position of having a new lawyer who may be unprepared. If you’re withdrawing a couple of months before trial, the new attorney may not have time to get fully up to speed. They may have to come in and oppose a motion without knowing everything that’s going on. So the withdrawal from a case really has negative impacts on a client that again, lawyers need to bear in mind when they go through this process

Dave Scriven-Young:

And thinking about those potential consequences to the client. There are then ethical rules that govern when and how a lawyer can withdraw in order to protect the client. So what are some of those ethical rules relating to withdrawal?

Michael LeBoff:

Yeah, well, the ethical rule, and at least the A model rule that applies to withdrawal is rule 1.16. And when I talk about the model rules, I always have to give the caveat that not every state has adopted the model rules to the letter. So there may be some nuances of whatever state you’re in in terms of your obligations when you can and cannot withdraw. But rule 1.16, there’s mandatory withdrawal and then there’s permissive withdrawal. The mandatory withdrawal we don’t see very often it comes into play if the representation will result in an ethical violation or a legal violation of the law. If the client’s physical or mental condition materially impairs the representation, the lawyer is fired or the client wants to use a lawyer’s services to perpetrate a fraud, those are the instances in which you have a lawyer must withdraw. It’s not an option at that point.

The rest of the circumstances are when a lawyer may withdraw, and that includes when the withdrawal will not have a materially adverse effect on the client. If the client persists on a course of conduct, the attorney reasonably believes is fraudulent or criminal. The client has used the lawyer services to perpetrate a crime or fraud, but that now crime or fraud is now completed, the client insists on a course of conduct, the lawyer considers repugnant or fundamentally disagrees. The client fails to fulfill an obligation to the lawyer. It’s usually financial or the representation will create an undue financial burden on the client. So you can see the reasons for an attorney withdrawing, it’s never because the client is doing something good, right? It’s never because this client is too perfect. So any of those grounds for permissive withdrawal when you make the motion to the court will create these negative adverse inferences for the client, which is why again, good communication upfront will hopefully avoid putting your client in that position where they’re forced to deal with a motion to be relieved as counsel.

Dave Scriven-Young:

Now that we’ve thought about those considerations and we’re thinking about withdrawing from a representation, what are some best practices that you would suggest for seeking to withdraw from the case?

Michael LeBoff:

Yeah. Well, the number one thing should be that a motion to withdraw should never come as a surprise to the client. There should always be a series of communications leading up to the motion to withdraw. And I think communication is essential If you have a client that’s not paying its bill, for example, you don’t file the motion to withdraw on the 31st day after you send the invoice. You want to have ongoing series of communications with the client about the bill, why it’s not being paid. Are they able to make the payment? Can they cure the nonpayment? Once you have these communications with the client, then you can start getting into, look, if we can’t get our bill paid, we’re going to have to withdraw. And the client is now on notice of that. If there are other issues such as the client wants to pursue a course of conduct that the attorney disagrees with, again, there should be communications with respect to that.

If the client wants to pursue a course of conduct that the lawyer finds frivolous, they want to pursue frivolous claims or seek damages that are not justifiable, again, all of those communications should be happening with the client well before you get into a situation where you have to withdraw. And again, all those communications in my opinion should always be in writing. So you have those when you need ’em. The other thing that I would encourage lawyers to do if they think they need to withdraw from a case is try to do it as early as possible in a case. And the reason is this is going to minimize the prejudice to the client. If a lawyer withdraws a month before trial, it becomes very difficult for the client to find new attorneys because a lot of attorneys simply don’t want to come in in a case where they only have a month to get ready for trial.

We all prefer to have the case early on. We can make it our own, take our discovery the way we want it and shape it the way we think it’s going to be. So it becomes very difficult for the client to find a new lawyer very late in the case. It also again puts the client in a position of having a lawyer who might not be fully prepared to try the case to take depositions, to oppose motions for summary judgment, or it may force a lengthy delay of the case out here in California. It takes about two and a half years now to get a case to trial in our state courts. So if a trial gets continued at the last minute because there’s a motion to withdraw, it might be nine months before that new trial date comes around and have a lengthy, lengthy delay for the client and getting this resolved and delays typically result in more costs to the client.

So the sooner you can identify the need to withdraw, address it with a client and file the motion, the better it’s going to be not only for the attorney but also for the client. I would also suggest that once you do withdraw, you want to make sure that you refund to the client any unearned fees. If you had money sitting in your trust account from a retainer, anything like that should be promptly refunded to the client. And I always encourage attorneys to turn over the files to their clients even if there’s a billing dispute. Some states, California does not allow you to do this, but some states do allow attorneys to assert a lien on the client’s files. The problem with this is you want that client to get their files, get it to new counsel and try and get the best result and that underlying case that you can because that’s going to minimize a dispute down the road.

If you withhold the files from the client’s new attorney, that client ultimately loses on a summary judgment. That client is going to be looking at your firm on a possible malpractice case. And part of the justification is going to be, you didn’t turn over my files, you put me in this position. So even if you can hold onto the files, I don’t encourage it. I would encourage lawyers to give those files to their client as soon as they’re requested and to do that because that’s going to mitigate any possible harm to the client, which will minimize the chances of a malpractice case coming back your way.

Dave Scriven-Young:

Yeah, and that makes sense. And in terms of malpractice defense presumably papering the file with the communications back and forth between the client as to maybe why they’re not paying the bill or if it’s just financial or coming back and maybe responding to some detrimental thoughts that the client might have. I assume that helps as well, either defending a malpractice case or defendant against a possible claim down the road.

Michael LeBoff:

Yeah, absolutely. And you always want to be the reasonable person when a fee dispute or a legal malpractice case comes about. So if the lawyers and the communications are reasonable, they’re trying to find solutions to the problem, they’re understanding the client’s issues, that is the attorney that’s going to look much better in a malpractice case or a fee dispute than the attorney who lets their emotions or egos take over. You have to remember, in terms of litigation, for most clients, it’s very, very stressful, particularly if they’ve not been in this situation before as litigators. When a case ends, we go on to our next case, but it’s the clients who have to live with the results and you really want to understand and appreciate that the stress on the clients that this process takes when you’re dealing with them and try to be reasonable, that’s really the best way to deal with these disputes.

Dave Scriven-Young:

You talked earlier about some of the things that you want to do after you withdraw. You talked about giving back any retainer amount that you might have or additionally providing the file back I think we talked about as well. Are there any other ethical duties that you have to the client after you withdraw from the case?

Michael LeBoff:

Well, the biggest ethical duty you keep after you withdraw from the case is your duty of confidentiality as an attorney. Even after with the withdrawal, you still have a duty to protect your client’s confidences and confidential information. And so what happens? Sometimes things go wrong and a client will go to Google or Yelp or some other social media site and post a negative review of the lawyer and the lawyer’s initial response or reaction may be, well, I want to defend myself and I’m going to put in reply to that post that says, well, that’s not what happened. I told you this, I told you that, but you told me you wanted to do this. That is something you can’t do. That would be a violation of the attorney’s ethical obligations in most states to respond to a negative review. So that’s the biggest thing you want to keep in mind is the attorney-client communication.

It still controls and you still have that obligation to maintain it. Now sometimes if you have to file a lawsuit for an attorney fee dispute, you can release some of the confidence or if you get sued for malpractice, then there’s a waiver of the duty of confidentiality at that point and you can make disclosures necessary to the prosecution or defense of that action. And I have seen some attorneys from time to time use that as an opportunity to really air all of their client’s dirty laundry. And again, I think this is more of an emotional reaction than a logical reaction, and I would discourage some lawyers to doing that. When you have a fee dispute, you can just put in the basics. The rest of the facts can come out in the litigation, but throwing your client under the bus or airing all the dirty laundry you learned in the course of the representation is rarely a good idea.

Dave Scriven-Young:

Presumably after you withdraw, you have a thought as an attorney, well, I wonder if they’re going to file a claim down the line for malpractice or maybe file a complaint with the ethical board in your state. Is there a way to try to resolve those potential disputes with the clients before those claims get filed?

Michael LeBoff:

So once the representation ends and there’s a dispute, I think lawyers really need to treat it like any other type of business dispute, whether it’s a simple unpaid invoice claim or maybe a more significant malpractice claim. You really want to look at that from the perspective of an ordinary business dispute. But I think one thing that’s important before you attempt to resolve the dispute with the client in terms of a settlement with releases and things like that, you want to make sure the representation ends and you no longer have any ongoing financial or sorry, fiduciary duties to your client. So if you’re still representing a client, typically under the ethical rules, you cannot negotiate a release or resolution of a malpractice claim. That representation has to end before you can do that, but otherwise, treat it like a business decision. Don’t get emotional about it.

The client owes you money. You certainly within your rights to assert a claim to collect the money, but try not to take those claims personally. And sometimes I think lawyers do get too emotional, do get too ego-driven, and that makes cases harder to resolve. And also one other point to make if it is a significant case in terms of dollars or potential exposure, I would encourage attorneys to bring in an outside attorney to help them. You need that objective voice in the room. And there’s an old maxima about an attorney who represents himself or herself has a fool for a client. And I think that can be very, very true for lawyers. They tend to be very bad clients. And so if it’s a significant enough dispute, I would encourage a law firm to bring in outside counsel to assist in the case again and be that voice in the room that maybe pulls some of the emotion out of the decision making.

Dave Scriven-Young:

That makes a ton of sense. Michael, we’re close to the end of our time together. We have time for kind of your last thoughts about withdrawing from a case and any other advice that you might have for attorneys considering firing a client.

Michael LeBoff:

Yeah, few other, just any points. And I think one thing is once you do fire the client and the relationship ends, it should end kind of like a breakup. The client may call you back and beg you to take the case, or maybe you want to be a nice person and you see that the client hasn’t retained new counsel yet, but there’s a deadline coming, so you want to just help on that. I would discourage that once you end the relationship and the relationship, it’s over. Don’t get into this, I’m not sure if they’re representing me or not situation, but the biggest thing is look, relationships end client relationships end. It doesn’t mean the lawyer did anything wrong. It doesn’t mean the lawyer’s a bad person and it doesn’t mean the client did anything wrong or is a bad person. Sometimes relationships just don’t work out and you have to accept that’s part of the job. But once you get out of the relationship, really focus on the clients you do have and the work you’re doing and keep developing new client relationships as you go throughout your career. And I think that’s more important than dwelling on the old relationships and the ones that have ended.

Dave Scriven-Young:

That’s great advice. Keep moving forward. Michael LeBoff from client and Wilson, thank you so much for helping us work through some of these tricky issues regarding Trinity client relationships. Appreciate that.

Michael LeBoff:

Absolutely, David, thank you for

Dave Scriven-Young:

Having me. Thanks to litigation section, premier sponsor Roundtable Group for sponsoring this podcast. Roundtable Group is an expert witness search and referral service with decades of experience and a comprehensive array of academic and industry relationships, as well as access to proprietary tools that further enhance the expert search capabilities of attorneys with no upfront fees, you only pay if you retain an expert Referred by Roundtable Group, learn more@roundtablegroup.com. And now it’s time for a quick tip from the ABA Litigation Section. I’m pleased to welcome back Lauren Williams to the show Lauren Practices corporate law at Morgan Stanley in Columbia, South Carolina. Welcome back to the show. Lauren, what’s your quick tip?

Lauren Williams:

Thank you for having me. So today’s young lawyer tip is the first year litigator survival guide. What I wish I knew when I started practicing. So starting your career as a litigator is literally like drinking water from a fire hose. There’s so much to learn and no one really gives you a manual. And I’ve been practicing law for quite a few years now, and I want to just share some things that I wish I knew when I first started practicing. These tips will hopefully help you not only to survive but thrive during those critical first few years. So the first one is mastering time management because the work never stops. Whether you’re in the firm billing hours, you’re a prosecutor handling a heavy docket, or you’re in-house litigating juggling investigations, the one thing you’ll realize quickly is that the work never stops. Court deadlines don’t wait.

Clients don’t wait, opposing counsel doesn’t wait. And the key to seeing afloat is time management. So learning early to prioritize what’s urgent versus what’s important, blocking off time focus for work. Don’t let emails our last minute tasks hijack your entire day and protect your personal time. Whenever possible. Litigation will take everything you give it. So it’s important to set those boundaries early. Another tip is developing thick skin. Criticism is not personal. So in litigation, feedback is constant. Your briefs will be red lined, your arguments will be challenged, and you might get called out in court. It happens. But here’s the thing, feedback is how you grow. So don’t get defensive. Take notes, ask follow-up questions, learn from your mistakes. And even when it comes to opposing counsel, some may try to rattle you a bit, some will be combative just because they feel like it, but don’t take the bait.

Stay professional, stay strategic, and never let anyone pull you into a fight that does not serve your client, your company or your case as far as your reputation. It’s built on those little things. When I first started practicing in profession, I learned very quickly that your reputation must be protected at all costs because the legal world is smaller than you think, and your reputation is being built daily, not just by the big ones, but by the small things you do. Like meeting deadlines. Are you prepared for hearings? Are you easy to work with the way you carry yourself in a Courtroom and depositions and even emails matter, judges, clerks, opposing counsel, they all remember who was professional, who was sloppy, who’s easy to work with. So protect your reputation early because once it’s damaged, it’s pretty hard to repair. Another thing is finding your voice in your own space.

And I struggled with this as a young attorney because it’s easy to feel like you don’t belong in the room, especially when you’re surrounded by more experienced attorneys. But let me tell you, your voice matters. Speak with confidence even when you’re unsure. You don’t have to have all the answers, but you should always be prepared. Do your homework, ask good questions. When you’re in court, speak up. If you’re too soft spoken or hesitant, people will overlook you. Own your space. Be direct and make sure your arguments are clear, concise, and compelling. When it comes to networking, that’s another important thing that I wish I knew the importance of when I first started practicing, because your relationships, they will carry throughout your entire legal career. One of the biggest mistakes I see young litigators make is thinking, networking is something you do only when you need a job.

And you need to start building relationships once you get into the practice, even in law school with judges, opposing counsel, fellow attorneys, and even bar associations, litigation’s all about relationships. So your network isn’t just about career moves, it’s about learning, mentorship and being in the right rooms. And my last tip, litigation is a lifelong learning process. So one thing I wish I knew earlier is that no litigator, no matter how senior knows everything, the law is always changing. As I’m sure everyone knows and the best lawyers are lifelong students, read case law, stay on top of procedural changes, be proactive about learning new strategies. And if there’s an area of law that interests you, become the go-to person for it. The more you know valuable, you become not just to your employer, but to your clients and the legal community. In closing, being a first year litigator is tough, but it’s also the foundation of your entire career. If you can manage your time, take feedback well, build your reputation, own your space, network early, stay curious, you’re already ahead of the game. Remember, litigation is a marathon, not a sprint. So pace yourself and remember that every great lawyer was once where you are now. So keep pushing forward. And I like to say thank you for tuning into this young lawyer tip on Litigation Radio. Until next time, keep learning, keep growing and keep advocating.

Dave Scriven-Young:

Great tips. Lauren, thanks so much for being here today.

Lauren Williams:

You are welcome.

Dave Scriven-Young:

That’s all we have for our show today, and I’d love to hear your thoughts about today’s episode. If you have comments or questions you’d like for me to answer on an upcoming show, you can contact me at descr Young at O’Hagan meyer.com and connect with me on social. I’m at Attorney Dsy on LinkedIn, Instagram X and Facebook. You can also connect with the ABA Litigation Section on those platforms as well. But as much as I’d like to connect with you online, nothing beats meeting you in person at one of our next litigation section events. So please make plans to join us at the 2025 Section Annual Conference, April 30th through May 2nd in Chicago. This annual conference provides unique opportunities to learn and interact with in-house counsel, outside counsel, academics, government, employees, and judges from around the country. The conference will include over 20 dynamic programs highlighting all aspects of litigation, and of course, there will be opportunities to network during our special events and programming breaks.

To find out more and to register, go to ambar.org/sac 2025. You won’t want to miss it. If you like the show, please help spread the word by sharing a link to this episode with a friend or through a post on social and invite others to join the show and community. If you want to leave a review over at Apple Podcasts, it’s incredibly helpful. Even a quick rating at Spotify podcast is helpful as well. And finally, I want to quickly thanks some folks who make the show possible. Thanks to Michelle Oberts who’s on staff with the litigation section. Thanks. Also goes out to the co-chairs of the litigation section’s audio contact committee, Haley Maple and Charlotte Stevens. Thank you to the audio professionals from Legal Talk Network. And last but not least, thank you so much for listening. I’ll see you next time.