Under Rule of Professional Conduct 1.16, a lawyer may withdraw from representing a client if “the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.”
However, withdrawing from a representation already begun is extremely difficult, as much of the rest of Rule 1.16 attests. An attempt to withdraw without adequate communication about and careful records of the difficulty that the client has caused — whether for nonpayment of fees, lack of cooperation or some other failing — may bring a state bar disciplinary action requiring future work without pay to fulfill ethical obligations toward the client.
Withdrawal cannot be done without reasonable notice to the client, allowing time for employment of other counsel, surrendering the client’s papers and property and refunding any advance payment of fees that have not been earned.
The simple fact is that no lawyer needs to contend with such headaches. The antidote to withdrawal is to undertake full due diligence before entering into a formal engagement agreement with the client. At the time of engagement, a lawyer must determine whether the goals of the client are understood and can be met. This also requires determining whether the client will facilitate achieving those goals. And facilitation, as Rule 1.16 suggests, means paying the bill and cooperating with the lawyer.
Due diligence on the client’s willingness and ability to pay should be documented in the initial engagement agreement. This investigation is a step that too many lawyers neglect, though it can be as simple as requesting a credit report from one of the consumer credit agencies or from a business credit reporter such as Dun & Bradstreet.
Once it is clear that prospective clients can pay, a signed engagement stating the terms and responsibilities for payment attests that they will pay. Clients who cannot or will not sign a fee agreement or pay a retainer, or who want to start now and pay later, should be considered suspect.
Cooperation is a similar issue. Avoid a client with unrealistic expectations or demands. Discussing engagement terms will frequently uncover the client who will in the future express irritation with delay, chronically complain about everything, demand constant or instant attention or expect unrealistic or abnormal hand-holding. Telltale signs are when prospective clients:
- insist that their matter is “life and death”; such clients will often be future sources of last minute emergencies that at best are irritating and at worst can result in errors under pressures;
- use pressure tactics to urge that their matter be handled immediately.
- demonstrate a bad attitude toward lawyers and the judicial system, or suggest that they know better than the lawyer what needs to be done; and/or
- cannot articulate what they want their lawyer to achieve.
Due diligence is a business essential. When you determine that a client will perceive what you do as being worthwhile and valuable, you are more likely to have successful engagements and a financially successful firm. Conversely, rejecting potential problem clients before representation will enhance that success by eliminating fee-collection difficulties and possible malpractice claims.