Lose Weight for the New Year! (or...fire a client ethically)

Breaking up is hard to do. (After all, it’s cuffing season.) This axiom is as true in a professional setting as it is in a personal one. How to ditch your quarantine bae before they’re vaccinated is beyond the scope of a legal ethics blog (as is whether I should ever use the term “quarantine bae” ever again). But firing a client and withdrawing from representation is sometimes absolutely necessary, regardless of what the calendar says. Perhaps they won’t return your calls, or are refusing to pay your bill, or you can’t see eye to eye about the objectives of representation. Some clients and cases are just albatrosses that you can’t and shouldn’t see through.

Just as it may be considered bad form in some circles to break up with your boo between Thanksgiving and Valentine’s Day, timing is important in ending an attorney-client relationship. Model Rule 1.16 (as well as its Wisconsin and Illinois counterparts) provides some guidelines. If a case is in suit, in most jurisdictions, you will need the court’s permission to withdraw, and one of the criteria the judge will review is whether withdrawal will have a materially adverse effect on the client’s interests. This means a judge may deny your motion made on the eve of trial or right before a deadline to file an appeal. Even if a case is not in suit and you don’t need a judge’s permission to withdraw, if a statute is about to run, it may be a better course of action to file the suit and either help the client find successor counsel who can substitute by stipulation, or you can move to withdraw without the pressure of a jurisdictional deadline.

Regardless of timing, there are appropriate and inappropriate to let a client know you’ll be moving on. I know conversations of this nature are hard and you might be tempted to (to borrow yet another relationship phrase) “ghost.” Just disappear. But there is just no good way to ghost a client—unless the client knows you’re done, you’re not done.

Similarly, no texting. Have you ever seen the Internet? People post their breakup texts and everyone else piles on the texter for being that person. I generally recommend against using texting for most substantive client communication. I realize that point of view is rapidly becoming a minority view, and there’s no ethical prohibition against texting, but it’s hard to maintain confidentiality with texting (so many phones display full texts on lock screens, and some people sync their phones to the iPads and computers that their kids are using for remote school) and tone is hard to convey. If you must, a text message asking to set up a phone call is fine. Avoid goofy emojis or text speak—a screen shot of your “I need 2 talk 2 u [phone] [sad face],” while conveying tone, will take on a very different tenor with an exhibit sticker attached to it in a grievance proceeding.

A generic “Dear Client, it’s not me, it’s you” letter is also tempting, but inadvisable unless you have no other choice. Rule 1.16 requires you to protect your soon-to-be-former client’s interests, and unilaterally withdrawing without any follow up will do nothing to effectuate that. Also, it will more than likely create far more questions than answers for the client.

In most circumstances, phone or (if safe) an in-person meeting is best. That way, questions can be answered in real-time. After the meeting, follow up with a summary email or letter (depending on the client’s communication preferences); include any relevant deadlines, how to retrieve their file, the fact that you will cooperate with successor counsel if they retain one, and what will happen with outstanding invoices or funds remaining in trust. If your jurisdiction requires a process to notify your client of a motion to withdraw (such as sending a letter by certified mail), follow that process, even if you’ve already talked to them on the phone or met with them in person.

There are, however, some circumstances in which an email or letter alone is appropriate. If your client has stopped taking your calls or returning your messages, that may be the only way to reach them. If your client has become abusive or harassing to you, a letter may be necessary for your own well being.