December 14, 2013 • By Dennis Beaver
Sharon is an extremely busy, solo estate planning and corporate attorney in a San Joaquin Valley town that does not have a surplus of lawyers with her level of skill.
“But a highly successful law practice can also be somewhat of a curse,” observes San Joaquin College of Law Professor Rose Safarian.
“When a lawyer accepts more work than can comfortably be taken care of, unless another attorney is brought onboard, it’s an invitation to making mistakes or dropping your clients.”
“And there is a right way and a very wrong way to do this,” she adds.
A Monday her clients will never forget
“Roger,” who practices medicine in Sharon’s town, learned all about the wrong way of telling a client to find a new lawyer, when:
“Stepping into my office on a Monday morning, on my desk, were our files — files which had been in her office. No warning — she just dumped us after 10 years handling our business matters and family estate plan! I phoned her, but she did not even have the courtesy to take my call.
“I had to scramble to find another attorney; because of family health issues, we were about to make important changes. This can’t be the way lawyers should treat their clients, or is it?” he asked You and the Law.
As we would learn from other readers, it was a Monday many of Sharon’s clients will never forget, wondering, “What did I do wrong?”
But they had done nothing wrong.
Sharon was seen at a local supermarket — and confronted by a former client who tearfully asked, “Why did you do this to me? Why didn’t you call and explain yourself?”
Offering no apology, Sharon’s excuse was, “I needed to slow down.”
There is a right way of dropping a client
“Before a lawyer even considers withdrawing from employment, steps must be taken to avoid harm to the client,” observes Paul Hayden, professor of consumer protection law at Loyola Law School in Los Angeles.
“An attorney must give notice, allow time for the client to find another lawyer, and, of course, return the file.”
Safarian agrees, adding, “If you just hand them their files with no advance notice, your license to practice law could easily be at risk.”
“And it’s not a matter of actual harm resulting,” Hayden points out. “A lawyer who did that could be disciplined for a failure to give notice whether or not actual harm occurred.”
A lawyer assuming that nothing is going on invites trouble
“Reasonable notice depends on the stage the matter is at,” Hayden notes. “If it’s at a crucial point, requiring some action — let’s say, you are facing a critical time limit — then a longer notice would have to be given. But if the case has ended, or nothing will need to be done for a long time, then short notice would be adequate.”
“Especially in estate planning matters,” observes Safarian, “it is dangerous for a lawyer to assume that nothing is going on — this is an invitation to real trouble.”
• Perhaps the client has a serious illness and needs to make changes to the estate plan immediately.
• Sudden, critical events do occur. Returning client files with no warning can put the client’s estate plan at risk, leading to great worry and significant financial loss.
• Clients do face emergency surgery or illness, which can lead to mental impairment and the urgent need for a durable power of attorney so that someone in their family can do the things that they are no longer able to handle. There may be no time to find a new lawyer.
• In that hour of need, we trust our lawyer to be there for us. The last thing any client wants is to feel abandoned at this most difficult time.
The duty to protect a client’s interests continues
“In all things that we do as lawyers, we are held to the highest duty the law knows. It is called the fiduciary duty and requires that we place the interests of our client ahead of our own. We are hired to protect our clients, not to harm them, and this duty continues into the act of withdrawing as counsel.
“The public relations consequences not only to Sharon, but to the profession itself, are horrible. We are supposed to act in a way which promotes professionalism. How she treated her clients clearly goes against that,” Hayden concluded.
There is a flip side to this coin, and that’s the client’s obligation of maintaining good communication with the attorney, keeping up to speed on the progress of the case, or merely to checking in from time to time.
Is it right to be billed for that? We’ll have the answer next time.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.