Samuel Stretton ()
Attorneys can reject any client that isn’t a court appointment.
I am a young lawyer. Are there circumstances when I should decline representing a client?
Obviously, a lawyer has no obligation to represent any client and can always turn a client down unless a court is appointing a lawyer to represent a client. If a court appoints a lawyer to represent a client, then the lawyer should accept the appointment unless the three circumstances that are set forth in Rule of Professional Conduct 6.2 occur.
Under that rule, a lawyer should not accept an appointment if the representation of the client would result in a violation of the Rules of Professional Conduct or other law. Second, a lawyer should not accept an appointment of a client if it is likely to result in an unreasonable financial burden on the lawyer. Third, the lawyer should not accept representation of a client if the client or the cause of the client is so repugnant to the lawyer that the attorney-client relationship would be impaired. If any of those three circumstances arise, then a lawyer can refuse a court appointment. Otherwise, a lawyer should accept an appointment by the court because of the responsibility of a lawyer as an officer of the court.
In the past, court appointments, particularly in criminal cases, were given rather routinely and indiscriminately to all members of the bar. All lawyers were expected to participate. Those days are gone with conflict lists and public defender’s offices. But if a lawyer is appointed by a judge on a criminal case or an orphan’s court judge, the lawyer should accept the appointment as an officer of the court unless one of those three aforementioned reasons would preclude representation.
Under normal circumstances, Rule 1.16, titled “Declining or Terminating Representation,” is the appropriate rule to review. Rule 1.16(a) precludes representation if the representation violates a rule of conduct or if the lawyer’s physical or mental condition impairs the lawyer’s ability to represent the client or the lawyer is discharged. Under Subsection (b) of Rule 1.16, there are permissive withdrawals allowed. Withdrawal is allowed if it can take place without adverse effects on the client or if the client persists in a court of criminal or fraudulent actions, in which the lawyer’s services are being used, or the client has used the lawyer’s services to perpetuate a crime of fraud. Further, if the client insists upon taking actions a lawyer considers repugnant or which the lawyer fundamentally disagrees with or the client fails to fulfill an obligation regarding the lawyer’s legal services, such as not paying legal fees, or the representation will result in an unreasonable financial burden on the lawyer, then a lawyer can seek to withdraw.
But a lawyer can always refuse to represent any client if the lawyer doesn’t like the client or doesn’t feel up to the case or is just too tired or too busy. The lawyer can decline any case other than a court appointment.
If the case is accepted, then the scope of employment should be defined as required by Rule 1.2. The fee letter should not only discuss the fee, but the scope or any limitations in the representation under Rule 1.5(b).
It should be remembered that under Rule 1.2, a lawyer’s representation of a client does not constitute an endorsement of a client’s political, economic, social or moral activities. Despite the public’s misperception of a lawyer representing someone charged with a terrible crime or a serious matter, the lawyer can and should represent a client even if the lawyer disagrees with those actions. Otherwise, no one charged with a crime would ever get representation.
In deciding whether to represent a client, the lawyer should clearly check to see if there is any conflict of interest under Rule 1.7. If the representation involves a former client, then Rule 1.9 should be reviewed.
The best advice to give a lawyer as to whether to take a case or not is what some lawyers call the smell test. Is the client going to be so troublesome that it is just not worth the legal fee? The older a lawyer gets, the better the lawyer gets at sniffing out clients who are going to be tremendous problems and for whom any fee doesn’t warrant representation. There is a certain quality of life that an extremely obnoxious or unreasonable client can slowly destroy and erode. A lawyer has to learn to recognize such clients. Sometimes a lawyer needs a fee and will take a case while recognizing the client may be difficult. But at least the lawyer does that with eyes open.
In conclusion, a lawyer can accept or reject any client for whatever reason unless it is a court appointment. On the other hand, the lawyer has to have business and sometimes difficult clients have interesting cases. Sometimes difficult clients pay well. The best advice to give a lawyer is to take the case if interested. If the client appears to be difficult, then in the fee letter or a separate letter, define the relationship and what the lawyer can and cannot do and will or will not tolerate. As a professional, a lawyer owes a fiduciary duty to a client. But that doesn’t mean the client is always right. A lawyer has to protect himself or herself in the relationship, and sometimes if the client is totally unreasonable, the lawyer has to have the courage to know when to withdraw.
ADR or arbitration clauses with clients should be approached cautiously.
As a lawyer who wants to limit any disputes with a client, can I include an alternate dispute resolution or arbitration clause in my fee agreement with the client wherein the client would agree to give up the right to any litigation if there is a dispute against me?
The question is a difficult one because initially it would seem to place the lawyer and the client in an adversarial relationship, even a conflicting relationship, under Rule of Professional Conduct 1.7. Arbitration clauses that limit the client’s ability to go to court if there is a fee dispute or any sort of dispute with the lawyer would appear to place the lawyer’s interest over the client’s interest. It is not necessarily in the client’s interest to agree to a limited redress. It certainly is in the lawyer’s interest. Rule 1.7 talks about concurrent conflict of interest. One of the aspects of a concurrent conflict of interest is if there is a significant risk that the representation of a client would be limited by the interest of the lawyer.
Obviously, it is in the lawyer’s interest to resolve client disputes quietly and in some inexpensive forum, such as mediation or arbitration. But it may not be in the client’s interest. This creates a conflict where the lawyer should send the client to another lawyer to review the fee agreement. Of course, having a new client sent to another lawyer to review the fee agreement is usually the kiss of death of the lawyer-client relationship. Chances are the client will never return.
One of the factors a court would look at in considering the validity of an arbitration or mediation clause is the sophistication level of the client.
Whether a conflict exists is discussed in the “Pennsylvania Ethics Handbook, 2011 Edition,” edited by attorneys Michael Temin and Thomas Wilkinson Jr. The authors state as follows:
“A [Pennsylvania Bar Association] ethics committee has opined that lawyers may include alternative dispute resolution (ADR) clauses in engagement letters with clients under certain circumstances and with specified limitations. While the committee expressed no opinion as to the desirability of lawyer/client ADR, the committee expressed a belief that the inclusion of an ADR clause would be permissible, not only as to sophisticated clients, usually businesses, but also as to unsophisticated clients, usually individuals. If the relationship is expected to be a continuing one, it should be clearly stated whether the ADR procedure would be applicable to any dispute that may thereafter arise out of the attorney-client relationship.”
Clearly, the legal ethics committee has a different view than me.
Obviously, if a lawyer has a fee agreement with ADR resolution, the agreement should be signed by the client. A normal fee letter doesn’t have to be signed by the client, but such an agreement to arbitrate or go to alternative dispute resolution would have to be agreed to and signed.
The opinion of the ethics committee does note that the client has to be fully advised on the arbitration and there has to be full disclosure as to the positives and negatives of this type of arbitration clause. The client would have to be given the opportunity to seek the advice of independent counsel. The client would also have to consent in writing, which presumably the client would do if he or she were to sign the fee agreement.
Despite the PBA opinion, I have some problems with putting a lawyer’s interest over the client’s interest. Although one could argue arbitration or mediation resolutions are in the client’s interest since many clients don’t have the money to litigate, clearly these clauses also limit the options of a client who might become dissatisfied.
There is no clear-cut answer, but if such mediation or arbitration clauses are put in the fee agreement, there has to be full disclosure and at least the encouragement to seek the advice of a lawyer. But I have a nagging doubt that this kind of conflict is too direct and should not be done by an attorney. But the PBA considers otherwise and certainly there could be some reasonable reliance on their opinion.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.