Know When to Hold ‘Em, Know When to Fold ‘Em

Avoid the perils of the attorney-client relationship by clearly communicating when representation begins and ends.

By CHARLES E. MORTIMER

Winter 2014

Many rules of professional conduct apply only when a lawyer is representing a client. You can subject yourself to these rules unwittingly.

An attorney-client relationship is easily created. The relationship is “established when it is shown that the client seeks and receives the advice of a lawyer on the legal consequences of the client’s past or contemplated actions.”[1] If the client believes you are his attorney, and if there is some reasonable basis for that belief, then you are his attorney. Your relationship will then be governed by, and your conduct will be judged against, all of the Rules of Professional Conduct.

Once the attorney-client relationship is established, it is “an ongoing relationship giving rise to a continuing duty to the client unless and until the client clearly understands, or reasonably should understand, that the relationship is no longer to be depended on.”[2] You’re in until you take measures to get out.

Lawyers should take great care to let the client know when the relationship has begun and when it has ended. Otherwise, the lawyer may be subject to a variety of ethics and professional liability claims from a person who believes that he is a client, even though the lawyer does not. It is crucial that the lawyer take steps to define the boundaries of the representation.

First, let the client know, in writing, the existence and scope of the representation at the outset. For instance, with what specific legal matter will you help the client? Or are you declining to represent this person?

Second, in a litigation matter a lawyer should file a motion to withdraw or, if appropriate, notice of withdrawal. Even after you move to withdraw, you remain your client’s lawyer, and owe all of the duties provided by the Rules of Professional Conduct, until the motion is granted. If the matter is complete, promptly file a notice of withdrawal. As long as you are counsel of record in a matter, you will receive all pleadings and other documents filed in the case. Your client will not, and you have a duty to provide those to your client. In addition, your client may be prevented from filing anything pro se or even making an appearance as long as court records show that you’re their representative.  As long as you are counsel of record, your client may reasonably expect you to give ongoing advice concerning changes in the law that are applicable to his situation, and you may subject yourself to conflict-of-interest charges if you take a cases that are adverse to a client for whom you are counsel of record.  If the representation is limited or “unbundled” under C.R.C.P. 11 (b), then make sure you give the notice described in C.R.C.P. 121 Section 1-1, (5).

Third, send your client a letter explaining that the representation has ended. Don’t expect the client to understand what a “notice of withdrawal,” or even an “order granting withdrawal,” means. And just because your involvement in the litigation may have come to an end, it does not necessarily follow that you’re no longer counseling the client on the legal matter. If the representation has ended, tell the client so in no uncertain terms. By doing so you have eliminated any reasonable basis for the client to believe that you still represent them.

Consider the termination letter a great opportunity to demonstrate interest in your client, educate the client about your practice and develop future opportunities to represent the client and her colleagues.

Charles E. Mortimer is Deputy Regulation Counsel in the Office of Attorney Regulation Counsel.