Many lawyers (myself included) over the course of any practice, run into issues withdrawing from representing and terminating a difficult client. (A recent example of this was when Peter Nygard’s defence lawyer asked to be removed as his counsel just before his sentencing for sexual assault, reportedly due to a “breakdown and loss of confidence in the solicitor-client relationship.”)
There are many competing issues at stake, including not wanting to abandon a client in a time of need, law society compliance, not wanting to abandon work-in-progress billings, pride, stress and protection from a lawsuit. These are just some of the many considerations that go through one’s mind when deciding if, when and how to “fire” a client.
Sometimes, withdrawing from representation is “simple”: the failure to pay a substantial bill or being faced with blatant harassment or racism during a simple will drafting. These moments allow for termination steps and motions to get off-record if required. (Note that I put “simple” in quotes implying that while the steps and justifications for withdrawal in these cases are straightforward in theory, in practice, as I’ve experienced in the above two scenarios, it is difficult to complete).
Where things get dicey are high-paying clients involved in high-leverage scenarios who then offer unethical instructions or no instructions at all to the lawyers involved. For example, a client facing an injunction motion days before the motion date demands that the lawyer lie in an affidavit. Or a client simply stops providing instructions prior to a transaction closing as a means to back out or delay a crucial transaction as leverage in a negotiation. In these scenarios, assuming the lawyer is forced to withdraw from representation, it is very difficult to navigate the correct steps to complete the withdrawal.
Many lawyers believe the best way to withdraw is to write a lengthy email outlining options, explaining the law society rules and spending more time on internal memos to cover liability. However, as I reflect on my personal experiences and observations of the effect this has on already upset clients, I propose that first and foremost, despite all regulatory rules and insurance mitigation, remember that a lawyer is a service provider. Thus, the best way to mitigate the risks involved in terminating a client is by providing quality service even in the face of an angry client. This means picking up the phone or having a meeting to explain the issues in a calm and professional manner (even if it means using an experienced supervisor to help). It also means coming up with solutions for what the client can do after withdrawal either by recommending lawyers or other solutions that may assist. It is only after a lawyer performs this “customer service” call that the options are recorded in an email and mitigation steps can occur.
Proper customer service as a means of mitigation can also avoid the dreaded motion to get off the record. Since a lawyer is only able to terminate a client without their consent on a motion to withdraw from representation ordered by the court, it would make sense that such motions would be streamlined and perhaps held privately with a deputy judge or court clerk. Unfortunately, this is not the case: these motions are ultimately no different from any other motion; they clog up the courts, prejudice all parties and are costly to the lawyer seeking withdrawal who will likely not be paid for this motion. Moreover, these motions do not protect the lawyer or firm from negative press or regulatory complaints from the very client they are looking to withdraw from.
While many colleagues of mine take the steps to seek these motions on the first red flag, my advice is to avoid these motions at all costs by providing alternative solutions to your representation. For example, one common scenario in terminating a client involves withdrawing in the face of unethical instructions at a key moment in litigation. The dilemma here is that withdrawing from representation at that moment may prejudice the client and backfire in the manner of a lawsuit from the client or an angry judge assuming delay. Also, motions to withdraw from representation disclose further issues with the client to the court depending on the reason (i.e., a lawyer withdrawing for failure to pay when defending a client from a collections action will likely send the wrong message).
One way I’ve avoided these issues is to persuade the client to terminate my firm and change representation while severely discounting or completely waiving any outstanding fees. This solution implies that I am in the wrong (not the customer who is always right), and by taking the fall for the client, the client is able to transition to new counsel smoothly without any implication to their case. The client is also happy to save fees, if retainer funds are returned, and can use the money to hire new counsel. While a court may still view this as a delay tactic, if the client moves quickly and the lawyer sends the file efficiently to new counsel, this is unlikely to be too much of an issue.
Firing clients at the right time is crucial not just because it is correct from the legal standpoint but because it is also more profitable. The non-billable (or uncollectible billable) time spent smoothing over difficult clients takes your time away from lower maintenance paying clients. By following the 80/20 rule, it is likely that 80 per cent of your time is being spent on clients like these, but the money is never worth it. Spending more time providing value during the termination phase of a difficult client as opposed to mitigation is the best way to deal with the difficult client.
This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.
