“I do not deserve to be your lawyer” is one of my favorite double entendres. It says a lot. Relationships of any type are rarely perfect and in some occasions it just would be better if you and a legal client parted ways. Perhaps it is a client who refuses to listen to your advice, one who turns out to be less than truthful, and even one who refuses to timely pay you. Often these same characteristics appear in that group known as Plaintiffs in legal malpractice cases.
In an October 2013 post (http://goo.gl/UqauVu) I wrote about The Pareto Principle, commonly used to refer to the 80/20 Rule now, but often used in math and business situations. For example, it could be used to say that 80% of your problems come from just 20% of your clients, or 80% of your profits came from just 20% of your clients. So, I advocated there that you should spend your time doing quality service for your good clients and just fire the bad ones. Instead of always chasing the future “Apple” type client, spend your time giving very good service to your good clients. In other words, go fire some clients you do not deserve to represent.
If you are going to do that, you need to do it right. Never let it happen right up against deadlines. Look at your professional rules and follow them closely. You likely need court approval for withdrawal in matters in litigation and need to follow any trial court rules. Likewise, you need to do a good end-of-representation closing letter that spells out client duties and all deadlines so the client is fully advised and protected.
We all know that sometimes you discharge the client and sometimes the client fires you. As I say, relationships do not always work. The closing letter should address the same issues in both cases. Here however is a most surprising fact. At this stage, when the relationship has really soured, many lawyers just tell the client to stop at their office and get their file. They want to be done with them. Later when a claim is made against them, that lawyer has little in the way of a file. What were they thinking?
Most states hold that the file, excluding work product for unpaid work in some states, belongs to the client and cannot be withheld, even when not paid. Just like any record in any type of proceeding, you better take the time to make a copy of the file before it leaves your possession. For an ethics claim, or a legal malpractice claim, you better have proof of what you did or did not do. The subject of the file could be addressed in the engagement letter stating your policy to copy all, and at whose expense. Regardless of the cost factor, you better make a copy of the file, or devise some way to have complete access to any file of a client leaving your representation. It makes the later claim just a little hard to defend without it.
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