Breaking Up with Clients

Every year or so, divorce lawyer Alton Abramowitz does something that would make many a lawyer lose sleep: He breaks up with a client. He would rather not show clients the door, but, he says, their unrealistic expectations sometimes leave him with no other choice. For instance? “People who walk into a lawyer's office and expect to get revenge or punish spouses,” says Abramowitz, a partner in Sheresky Aronson & Mayefsky and co-chair of the New York County Lawyers' Association matrimonial law section. Or clients who “expect you to identify with their anger and feed on their anger.” Then there are clients who become incensed because they see Abramowitz “chatting in the hallway with the wife's lawyer.”

In these situations, Abramowitz reminds clients that “matrimonial clients are not married to their lawyers,” he says. “I've said, 'If you're that unhappy with the way I'm conducting the case, find another lawyer,'” recalls Abramowitz. But, as counselors know first-hand, breaking up can be hard to do — especially if the client doesn't want to find other counsel. For clients who refuse to seek another attorney, Abramowitz says he asks the court to relieve him.

Although disagreements with clients can happen in any kind of case, lawyers say that clients are especially likely to be irrational when the situation involves emotional or personal issues, such as divorce, criminal proceedings, immigration or personal injury. In these kinds of cases, it can make more economic sense to part ways with the client than to continue fighting for an unachievable goal. Of course, there are occasions when lawyers must get off a case, such as if a client wants to perpetrate a fraud on the court. But there are other times when lawyers simply want to be rid of a case for reasons ranging from disagreements about strategy, to whether to accept a settlement, to failure to pay legal fees.

Making the Motion to Be Relieved

Drafting these motion papers is tricky, because they can't reveal a client's confidences or put forward anything that will prejudice the client's case. Howard Benjamin, a partner in Benjamin, Brotman & Associates who specializes in matrimonial law and attorney grievance cases, says many lawyers try to solve the problem by filing motions that talk in vague terms about the “irretrievable breakdown of the attorney-client relationship.” Still, that won't satisfy all judges; some will want to hear more details. When judges insist, says Katter, lawyers can request a meeting with the judge without the other side. If the judge allows a private meeting, the lawyer can feel more free to disclose possibly damaging material without his or her adversary present. Regardless, lawyers are left “walking a tightrope,” says Katter, since disclosing too much can haunt them later, but revealing too little can leave them stuck on the case.

Question of Fees Owed

When a lawyer's main motive for wanting to be relieved is that the client isn't keeping up with paying fees, the situation is especially difficult; some judges simply won't let lawyers off a case if the only issue is payment, says Benjamin. But, this doesn't mean that lawyers have to work for free. Judges can award attorneys' fees and can also order a lien on assets — after the case ends.

Once a client actually becomes a former client, whether voluntarily or because a judge has relieved the lawyer, the attorney still has obligations. Among the most important is that the attorney must give the client his or her files. There is one exception to this rule, however: Lawyers need not give files to clients who owe fees. “If you have the file and the client owes you money, you have a lien on the file,” says Matthew Schwartz, who handles attorney malpractice cases. “You can keep everything, even the key evidence in the case,” says Schwartz, a partner in Siller Wilk. But, he says, it is not a good idea to do so. “It incenses clients,” says Schwartz. “If you hold on to a client's papers, that starts to really ratchet up the emotionalism.” What's more, he says, in cases where clients are already feeling dissatisfied, asserting a lien on the file can actually spur a malpractice lawsuit, because liens do not prevent discovery in negligence cases. In other words, if a lawyer refuses to give the client's files back, that client might feel cornered into filing a malpractice lawsuit just to get the file through the back door. In addition, in some circumstances, courts allow former clients to post a bond in exchange for the file.

Continuing the Relationship

Even after an attorney has been relieved, some clients may continue to place demands on him or her. Schwartz recommends that lawyers ask their former clients to have the new lawyer contact them. He also advises that the old attorneys be honest with the new attorneys, even where there is a threat of a malpractice lawsuit. Even when the first lawyer did something negligent in the case, if he is honest about it but makes a persuasive argument that the mistake did not affect the result, the new lawyer might not file a lawsuit. If, on the other hand, the first lawyer lies and the new lawyer discovers it later, trouble is more likely to follow.

What about the client who just doesn't get the message and, even after the lawyer has been relieved, continues to call for advice? Lawyers who choose to communicate with a former client should keep in mind that the ex-client's disclosures might still be confidential. That's because courts can view the former client as a prospective client seeking advice, says ethics specialist John Leubsdorf, a member of the Association of the Bar of the City of New York's ethics committee. But, Leubsdorf and others agree that lawyers have no ethical obligation to continue contact with their ex-clients. “The good thing about not being somebody's lawyer any more is you don't have to respond,” says Schwartz.

Every year or so, divorce lawyer Alton Abramowitz does something that would make many a lawyer lose sleep: He breaks up with a client. He would rather not show clients the door, but, he says, their unrealistic expectations sometimes leave him with no other choice. For instance? “People who walk into a lawyer's office and expect to get revenge or punish spouses,” says Abramowitz, a partner in Sheresky Aronson & Mayefsky and co-chair of the New York County Lawyers' Association matrimonial law section. Or clients who “expect you to identify with their anger and feed on their anger.” Then there are clients who become incensed because they see Abramowitz “chatting in the hallway with the wife's lawyer.”

In these situations, Abramowitz reminds clients that “matrimonial clients are not married to their lawyers,” he says. “I've said, 'If you're that unhappy with the way I'm conducting the case, find another lawyer,'” recalls Abramowitz. But, as counselors know first-hand, breaking up can be hard to do — especially if the client doesn't want to find other counsel. For clients who refuse to seek another attorney, Abramowitz says he asks the court to relieve him.

Although disagreements with clients can happen in any kind of case, lawyers say that clients are especially likely to be irrational when the situation involves emotional or personal issues, such as divorce, criminal proceedings, immigration or personal injury. In these kinds of cases, it can make more economic sense to part ways with the client than to continue fighting for an unachievable goal. Of course, there are occasions when lawyers must get off a case, such as if a client wants to perpetrate a fraud on the court. But there are other times when lawyers simply want to be rid of a case for reasons ranging from disagreements about strategy, to whether to accept a settlement, to failure to pay legal fees.

Making the Motion to Be Relieved

Drafting these motion papers is tricky, because they can't reveal a client's confidences or put forward anything that will prejudice the client's case. Howard Benjamin, a partner in Benjamin, Brotman & Associates who specializes in matrimonial law and attorney grievance cases, says many lawyers try to solve the problem by filing motions that talk in vague terms about the “irretrievable breakdown of the attorney-client relationship.” Still, that won't satisfy all judges; some will want to hear more details. When judges insist, says Katter, lawyers can request a meeting with the judge without the other side. If the judge allows a private meeting, the lawyer can feel more free to disclose possibly damaging material without his or her adversary present. Regardless, lawyers are left “walking a tightrope,” says Katter, since disclosing too much can haunt them later, but revealing too little can leave them stuck on the case.

Question of Fees Owed

When a lawyer's main motive for wanting to be relieved is that the client isn't keeping up with paying fees, the situation is especially difficult; some judges simply won't let lawyers off a case if the only issue is payment, says Benjamin. But, this doesn't mean that lawyers have to work for free. Judges can award attorneys' fees and can also order a lien on assets — after the case ends.

Once a client actually becomes a former client, whether voluntarily or because a judge has relieved the lawyer, the attorney still has obligations. Among the most important is that the attorney must give the client his or her files. There is one exception to this rule, however: Lawyers need not give files to clients who owe fees. “If you have the file and the client owes you money, you have a lien on the file,” says Matthew Schwartz, who handles attorney malpractice cases. “You can keep everything, even the key evidence in the case,” says Schwartz, a partner in Siller Wilk. But, he says, it is not a good idea to do so. “It incenses clients,” says Schwartz. “If you hold on to a client's papers, that starts to really ratchet up the emotionalism.” What's more, he says, in cases where clients are already feeling dissatisfied, asserting a lien on the file can actually spur a malpractice lawsuit, because liens do not prevent discovery in negligence cases. In other words, if a lawyer refuses to give the client's files back, that client might feel cornered into filing a malpractice lawsuit just to get the file through the back door. In addition, in some circumstances, courts allow former clients to post a bond in exchange for the file.

Continuing the Relationship

Even after an attorney has been relieved, some clients may continue to place demands on him or her. Schwartz recommends that lawyers ask their former clients to have the new lawyer contact them. He also advises that the old attorneys be honest with the new attorneys, even where there is a threat of a malpractice lawsuit. Even when the first lawyer did something negligent in the case, if he is honest about it but makes a persuasive argument that the mistake did not affect the result, the new lawyer might not file a lawsuit. If, on the other hand, the first lawyer lies and the new lawyer discovers it later, trouble is more likely to follow.

What about the client who just doesn't get the message and, even after the lawyer has been relieved, continues to call for advice? Lawyers who choose to communicate with a former client should keep in mind that the ex-client's disclosures might still be confidential. That's because courts can view the former client as a prospective client seeking advice, says ethics specialist John Leubsdorf, a member of the Association of the Bar of the City of New York's ethics committee. But, Leubsdorf and others agree that lawyers have no ethical obligation to continue contact with their ex-clients. “The good thing about not being somebody's lawyer any more is you don't have to respond,” says Schwartz.