All attorney‑client relationships come to an end at some point. However, the process of terminating the attorney‑client relationship is rife with the potential for disciplinary rule violations. The irony is that you may have provided exceptional representation and received a great result for your client, but may still wind up defending yourself against a grievance.
The third most common grievance for lawyers involves mistakes made while terminating the attorney‑client relationship. This is surprising considering that the representation is largely over at this point. I suspect that is exactly why it happens ‑ most lawyers do not recognize the importance of these seemingly minor details in parting ways with a client. These details are often delegated to staff and forgotten as the lawyer moves on to new clients and new matters. But just as doctors with poor bedside manner receive disproportionately high numbers of malpractice claims,1 lawyers who do not take the time to attend to the client’s needs – especially as the representation is ending – will face higher numbers of grievances and malpractice lawsuits.
There are several issues surrounding withdrawal and proper termination of representation, including the timing of the withdrawal and whether good cause exists for withdrawal. Such issues require a detailed factual analysis and are beyond the scope of this article. For our purposes, we will assume that either the case is over, that it is the client’s decision to early terminate the representation, or that the lawyer has appropriate grounds for withdrawal and the timing will not prejudice the client. This article will focus on mistakes made during the process of withdrawal that result in a large number of grievances.
Providing the Client File Upon Request
The first issue that comes up in an astonishing number of disciplinary cases is a simple failure to provide the client’s file upon request. Texas Disciplinary Rule of Professional Conduct 1.15 (d) states, “[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as . . . surrendering papers and property to which the client is entitled[.]”
Rule 1.15(d) violations usually result from providing no file, an incomplete file, or not providing the file quickly enough. The rules do not specify what constitutes a reasonable amount of time in which to comply with this request, but I have personally seen cases sent into the grievance investigation stage where the attorney had not been given more than a couple of weeks to comply. The bottom line: the file must be provided promptly, and while the definition of “promptly” may be debated, you will need to justify even slight delays in providing the client his or her file. One can avoid a grievance all together by establishing procedures to provide the file to the client within a week or less of the request.
It may sound elementary, but the first step to accomplishing this goal is to keep a client file and to update it in real time. Whether electronic or paper, it is imperative that there be a file assigned to each client in which all pleadings, orders, notes, correspondence, and other documentation is placed as the case progresses. As I am writing this article, one of my lawyer clients has yet to provide me his client file on a case that I requested over two weeks ago. This type of delay is frequently the result of having to create or substantially update a file after the fact. With a busy practice, it is easy to neglect non‑urgent matters like file maintenance. But this makes it monumentally more difficult to prepare and provide the file after the case is over. Do yourself a favor and make sure that files are maintained in real time. It will make the process of providing the client file seamless and will avoid an unnecessary grievance, which would be much more costly and time‑consuming than the effort it takes to keep the file updated.
A second issue that lawyers run into with providing the client file is not knowing what exactly to provide. The short answer: provide everything. Many lawyers still believe that their work product and case notes do not belong to the client. This is incorrect. With very limited exceptions, a lawyer’s notes and work product must be provided to the client.2 Moreover, the client is entitled to the original documents filed with the Court. If you, as a lawyer, wish to retain a copy of the file, it is your duty to make a copy for yourself but to supply the original file to the client. All copying expenses are borne by the attorney, not the client.
Criminal defense attorneys are frequently concerned about receiving a grievance for not providing discovery received from the prosecution under Texas Code of Criminal Procedure, Article 39.14(f).3 This is something that the State Bar of Texas’ Classification Attorneys are aware of and have been trained to consider when reviewing a grievance alleging that portions of a file were not received. If you have provided the file to the client upon request, but have withheld discovery under Article 39.14(f), be sure to include a letter explaining why that information cannot legally be provided. Sometimes the client will include the letter as part of their grievance materials, thinking it proves that they are not receiving everything. In fact, if a classification attorney reviews a letter indicating that everything has been provided except discovery under Article 39.14, it will virtually ensure that the grievance based on same will be dismissed.
Another problem arises when the lawyer destroys the client file too soon. If the client comes back at some future date to request the file and the lawyer is unable to provide it because it has been destroyed, the lawyer could be facing a sanction if the file was not retained for a reasonable amount of time. But what is a reasonable amount of time? The unsatisfying but true answer: it depends on the case.
The disciplinary rules do not explicitly tell attorneys how long they must keep client files after resolution of the matter.4 Professional Ethics Committee Opinion 627 acknowledges this void and resorts to “guiding principles” to determine the appropriate considerations for file retention. For our purposes, the primary consideration is the lawyer’s continuing obligation to not harm the interests of a former client. This requires a lawyer to thoughtfully consider whether the client could reasonably need the file at any future point. As we know, in criminal cases, a client’s potential need for the file may vary wildly depending on the type of case, how it was disposed of, the availability of future appeals, etc. There is not a one‑size‑fits‑all answer for the criminal practitioner. Therefore, you will need to put some reasonable policies in place that vary depending on the nature of the case and its disposition. Alternatively, and more common these days, is to keep electronic files for each client and to retain them indefinitely. This ensures the file can be provided if needed for an appeal or any post‑conviction issue.
One final note on this issue ‑ the rules do require a five‑year retention of client trust account records.5 If you are not retaining client trust account records for at least five years or, even worse, you do not put advance fee payments into your trust account or even have a trust account–you are violating various disciplinary rules. Each of the above issues may come to light if a client files a grievance for failure to supply their file. It is critical that you understand the rules governing the proper handling of fees and that you are maintaining proper trust account records for each client.
In terms of how to deliver the file to the client, this can require a more unique approach in criminal cases, particularly when the client is incarcerated. Generally, it is sufficient to tender a client’s file to be picked up at the lawyer’s office by the client or a designated representative.6 It is also normally permissible to provide the file as it is maintained in normal course of business, which may be in digital format.7 But for the incarcerated client, unless you are in agreement otherwise, it will usually be necessary for you to print out a hard copy of the file and mail it directly to the client. This can be expensive and time‑consuming, but not nearly as expensive and time‑consuming as defending a grievance. If there are certain items that cannot be provided in this manner, you will be in compliance with the rules if you are working with the client and making reasonable efforts to get the information to them or a representative.
Failure to Refund Unearned Fees
When an attorney‑client relationship ends prior to resolution of the legal matter for which the attorney was retained, you can bet the client will be asking for a refund of some or all the fees. How you respond to this request will play a huge factor as to whether that client decides to grieve you.
Many criminal practitioners charge fixed fees and, if fired prematurely (particularly without good cause), will take the position that the fee was earned upon receipt and that no portion of it need be returned. Sometimes there is language in the fee agreement specifically stating that the fee is earned upon receipt and is non‑refundable.
Not only is refusing a refund on this basis one of the quickest ways to get a grievance filed against you, but it is an incorrect statement of the law. A fixed fee is not earned upon receipt, even if language in the fee agreement indicates that it is.8 The fee is not earned until the legal work for which the fee is paid is completed. Theoretically, this means until the case is resolved. But many practitioners, rather than waiting until completion of the case to consider the fee earned, will use a graduated fee agreement to delineate what portions of the fee are earned upon completion of certain tasks in the case. This is perfectly fine, and even preferable. It leaves less room for misunderstanding by the client about how and when the fees are earned, and allows the lawyer to be paid as the case and workload progresses.
When the State Bar receives a grievance alleging that a lawyer refuses to refund fees, they first attempt to determine whether there is a legitimate fee dispute ‑ a valid disagreement about how much of a fee has been earned ‑ versus a flat refusal to refund fees that clearly have not been earned. This can be difficult to discern from the face of a grievance, but if it appears that the lawyer is refusing to consider any refund even though a case ended prematurely, it is more likely to be upgraded for investigation. If this happens, the State Bar will often check to see if you have a trust account and may even subpoena your trust account records to see if the fee was deposited into the trust account when received.
The State Bar investigator will typically ask the lawyer to provide invoices justifying the fee or, if it is a fixed fee case, to essentially create an invoice estimating the hours billed multiplied by the hourly rate. If the lawyer is unable to justify keeping the entire fee, the case will likely be set for an investigatory hearing, after which the lawyer may be offered a sanction for violation of Rule 1.15(d).
If you want to avoid this time, money, hassle, and mark on your professional reputation, the time to negotiate with a client about a refund is before a grievance is filed – i.e., when the client first raises the issue. I have many lawyer clients who, after a grievance has been filed and they have hired me to defend them, tell me they are more than willing to refund some of the fee to resolve the matter. But once a grievance is pending, it is too late to negotiate directly with the client. Not only is there no way to “settle” a grievance at this stage,9 but such overtures, even when genuine, can appear to disciplinary counsel as an attempt to bribe the complainant or tamper with their participation in the proceeding.10
There may be times when the client is being wholly unreasonable – demanding a full refund despite substantial work on the case. Only you can decide whether it is worth it to stand on principle and face a possible grievance, or attempt to work something out that may resolve the issue. It is perfectly fine not to pander to insulting or irrational demands. Just ensure that you can fully justify the amount of the fee you have retained before sending a client away empty‑handed. And for the clients who are not being unreasonable but with whom you legitimately disagree about the fee – just know that sitting down with the client to discuss the matter and returning a portion of the client’s money could save you an exponential amount of time, money, and legal trouble down the road. Sometimes it is not all about the money. It often is the client’s need to feel heard and treated fairly that will make all the difference.
In conclusion, resolving an attorney‑client relationship on a positive note should be given the same priority in your practice as bringing in new clients. Maybe even more. Not only can it save you the stress of defending a grievance, but it is the lasting impression you leave with clients that will build your reputation over time. The time and effort it takes to put the right processes and training in place up front will pay high dividends over the course of your professional career.