X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Imagine spending countless hours prepping a key witness for a deposition in a complex, high-stakes commercial litigation matter. The witness — your client’s long-term lawyer — has been involved in the dispute since day one. After being left alone in a conference room to review documents before the deposition, the witness vanishes. He leaves the premises without explanation. You check the men’s room, the hallways and his hotel. He’s nowhere to be found. How do you explain the witness’ disappearance to the parties assembled at the deposition? What do you tell the judge? How do you continue to work with your client? Should you “fire” the client? “The reality in situations like that … is it just breaks the trust that is required in order to litigate the case through to conclusion,” says James “Jay” Munisteri, a partner in Gardere Wynne Sewell in Houston, who actually experienced the above scenario. “Clients have to trust lawyers, and lawyers have to trust their clients. When, for some reason, you have that aberrational circumstance, it’s just too hard to overcome. The attorney-client relationship loses its backbone.” It’s inevitable, as Munisteri learned: At some point in a career, a lawyer encounters the “impossible” or “difficult” client — the one the lawyer wishes he had never agreed to represent. The client who lies, is verbally abusive, calls a million times a day, refuses to take sound advice, fails to cooperate, second-guesses the attorney’s every strategic move, requests that the attorney engage in repugnant or unethical behavior, refuses to pay the agreed legal fee. Or perhaps the problem is simply as basic as bad chemistry. Sound familiar? A lawyer trying to extricate himself from such a relationship faces significant ethical, business and personal challenges. “You remember the Paul Simon song, ’50 Ways to Leave Your Lover?’ ” asks Houston attorney George W. Connelly Jr., chairman of the tax controversy and litigation section at Chamberlain, Hrdlicka, White, Williams & Martin. “ It is never that easy.” Moreover, having the wherewithal and confidence — basically, the guts — to terminate a client relationship often comes only with experience and perspective. It’s hard for new lawyers, who are just trying to make ends meet, to let a client go, notes Houston family lawyer Teresa J. Waldrop. “I have just reached a place in my career — after 12 years — where I can afford the luxury of terminating a client relationship if it appears necessary,” she says. Waldrop acknowledges that it is the nature of her practice that clients may be emotionally fragile or volatile — one day instructing her to “get that SOB,” another calling to say, “I’ve changed my mind. I want you to settle my case now.” Even so, terminating the attorney-client relationship is not something done lightly. Nor is it something lawyers particularly want to talk about. In fact, nine lawyers contacted for this article refuse to discuss it at all. “They don’t want to get sued,” says criminal-defense attorney Dan Cogdell, a partner in Houston’s Cogdell & Goodling, who says over the years he has fired a handful of clients for lying to him. Moreover, “no lawyer wants to be perceived as a lawyer who has clients he has to fire. … It’s like the best divorce you ever had: You still don’t want to talk about it.” “Lawyers don’t want to be identified with problem representations or difficult attorney-client relationships,” says Jim McCormack, a partner in the Austin firm of Tomblin Carnes McCormack. “They think it reflects poorly on them, but the reality is we’ve all had these relationships.” INSECURE, NEEDY CLIENTS Those Texas lawyers willing to discuss the reasons they’ve fired some clients offer a variety of reasons for doing so. McCormack, formerly general counsel and chief disciplinary counsel for the State Bar of Texas, advises firms on legal ethics and legal malpractice issues. He says he has had to fire clients in the past for two basic reasons. One is when a client is so suspicious and apprehensive of lawyers, including his own, that a trusting relationship fails to develop. It’s the insecure client. “It hampered us because we couldn’t get a decision from the client,” McCormack says of an insecure client’s behavior during a personal-injury case. “The client basically shut down the decision-making process — decisions that were properly only the client’s. It was like [the client thought], ‘You’re giving me two choices, and I am not going to make either one because I don’t trust that those are the right choices or that those are my only options.’ “ McCormack offered to entertain any option the client presented, but the client remained wary and refused to offer any. “In those instances, I’ve always tried to meet with the client, explain what the choices are and, if it’s a situation where the client was simply suspicious of choices, present the choices in writing,” McCormack says. “You really have to try to go that extra mile … [and] say, ‘If you have to choose, I can advise you, but I can’t make the choice for you.’ “ McCormack also fired a client in a general civil matter who expressed concern that his case was being neglected. “The reality was that the client wasn’t being neglected,” McCormack says, but felt neglected because the case was not progressing quickly enough in his view and he wanted more attention, nurturing and handholding. Another insecure client. “My reaction was, ‘Here’s your money back, here’s your file and I think you should take some time, since there is no deadline pressing, to see if you want us or someone else to represent you,’ ” McCormack says. After a short time, the client came back and said he wanted the representation to continue and returned the retainer. CONTROLLING CLIENTS In 50 years of practice, legendary Houston attorney Joseph D. Jamail says he has fired clients perhaps a dozen times, most often for what he calls “playing lawyer” or “telling the lawyer how to be a lawyer.” “A client doesn’t need me if he can be the lawyer,” says Jamail, a partner in Jamail & Kolius. “The only thing a lawyer has that is of any value to a client is his independent judgment. If he gives that over to the client, then he’s cheating the client. The client is paying him for nothing.” When that happens, Jamail says, “I give the client the benefit of the doubt and [let him] go.” In such cases, Jamail informs the client that he is free to hire anyone he wants and returns the client’s file. Other occasions for terminating the attorney-client relationship have involved clients asking Jamail to do something he doesn’t feel is proper ethically. Houston attorney Richard Mithoff, a partner in Mithoff & Jacks, imposes a few ground rules when accepting a client for representation to make sure it’s clear who the lawyer is. First, the client makes the final decisions and the big decisions, such as whether to go to trial or whether to settle and, if so, for how much. But when it comes to recommendations and decisions of strategy, that’s Mithoff’s territory. “I say that I will tell them what those decisions are but that those will be my decisions. If they have a different reaction, I want to hear it, but the decisions of strategy will be mine,” he says. “And if we reach a point where they are unwilling to follow my decision on strategy and I feel strongly enough about the matter, I will simply terminate the relationship.” Breaching a lawyer’s rules serves as grounds for dismissing clients in Houston family law solo Waldrop’s practice, too. “I am very careful to do a very extensive initial office visit, and I have in my agreement the reasons requiring withdrawal,” she says. CLIENTS WHO LIE Over the past 12 years, Rusty Hardin, a partner in Houston’s Rusty Hardin & Associates, estimates he’s fired four or five clients. For Hardin — whose clients have included celebrities, professional athletes, elected officials, chief executive officers and multimillion-dollar corporations, most recently Arthur Andersen — the key issue in whether to terminate a client relationship is whether there has been a breach of trust or loss of integrity. On two occasions, Hardin says, he terminated relationships with clients who lied to him about “very material matters.” “It was a situation that not only undermined them but had me making representations that just simply weren’t true,” he says. “Misleading the lawyer, lying to the lawyer, is something I think is intolerable in the attorney-client relationship. And I, quite frankly, don’t want to spend my time trying to help somebody that is going to do that.” Mark Lanier, of the Lanier Law Firm of Houston, says he’s fired at least 30 clients in the 20 years he’s been practicing. In every instance, Lanier says, it was because they weren’t truthful, or didn’t follow his advice. “I’ve had them lie to me about how their accident happened. I’ve had them lie to me about their personal life, their personal records,” says Lanier, a plaintiffs lawyer. “I fired one client because he lied in a deposition.” Consequently, Lanier has changed, to a degree, how he prepares a client for a deposition. “I make it real clear that if they lie, I’ll fire them,” he says. Cogdell, too, has fired clients after he discovered they lied to him — fortunately before any adversarial proceedings began and before formal charges were filed. “My experience is if they are going to lie at the beginning of the relationship … they will lie at the middle and end, and life is too short to deal with lying clients.” George Parnham, a partner in Houston’s Parnham and Associates, says he recently withdrew from the representation of an individual who insisted that Parnham do something unethical and illegal in the representation. “Of course I would not divulge to anyone the identity of the person or the nature of the request, but [I] basically convinced the individual that it was not in his best interests for me to continue [the representation], and I withdrew and refunded some of the funds that I had been paid,” Parnham says. On occasion, Parnham is able to reason with a client rather than withdraw. One of his clients insisted on putting witnesses on the stand who would perjure themselves, but Parnham convinced him that calling such witnesses was a bad idea. MATTER OF PRINCIPLE Sometimes a lawyer may find that the circumstances surrounding a client or a case are morally repugnant. So much so, that the lawyer may feel compelled to withdraw from representation as a matter of principle. David Berg says he never will forget one instance when he simply had to withdraw from representing a client, despite a great plea bargain he recalls negotiating for the defendant. Berg, a partner in Houston’s Berg & Androphy, says he was defending a man facing federal charges of transporting explosive materials through interstate commerce. Berg recalls that prosecutors were arguing his client intended to blow up a radio tower. Berg says he recalls negotiating a deal with prosecutors to dismiss all charges except a weapons charge against his client, who already had served six months in jail awaiting trial. But when Berg showed up for a court hearing before a U.S. District Court judge, his client told him another lawyer would join the case to assist Berg. It turns out the new lawyer was widely known for his anti-black and anti-Semitic rhetoric. Berg says he told his client he couldn’t continue to represent him if the other lawyer was involved, and the judge quickly granted Berg’s motion to withdraw from the defense team. “I never regretted withdrawing from the case,” Berg says. Defense lawyer David Prichard, a partner in Prichard, Hawkins & Young in San Antonio, once fired a client over a matter of principle, too — albeit in a very different context. In the early 1990s, when Prichard worked at the former Groce, Locke & Hebdon firm, he was hired to defend a trailer manufacturer in a wrongful-death suit filed by the families of some illegal immigrants who were smuggled into the United States in a trailer. He got the suit dismissed, and the client — the insurance company for the trailer manufacturer — didn’t have to pay anything to the plaintiffs, Prichard recalls. “Sometime after they had paid us, I received a call from an auditing company for the insurance company advising me they had performed an audit on our already-paid bill and I owed them something like $300,” Prichard says. He wasn’t able to get the auditing company, or the insurance company, to reconsider the demand, so the firm decided to fire the client, Prichard says. “We said, ‘Come pick up your files,’ ” he says. “ This was more of a principle of a thing, both in terms of the audit, the ex-post-facto nature of the request and the seeming unconcern for the outstanding result.” He says that’s the reason his firm doesn’t do much work for insurance companies anymore. BAD KARMA Feeling good about whom you represent — or at least, not feeling bad about the client or claim — can also play a role in whether or not a lawyer ultimately cuts a client loose. With nearly 30 years of practice under his belt, Mithoff reflects that he never has made a decision to stay with a case simply because of the money if he didn’t like the client or the claim. “If I don’t feel right about the client or what I am asking the jury to do on behalf of the client, then there is probably good reason for that, and it probably means the jury is going to be uncomfortable, too,” he says. “If you are uncomfortable with your relationship with your client, the claim you are making [or] the argument you are making, juries sense all that, and you are not helping yourself or your client. It may be that another lawyer can make that argument just fine.” Hardin advises lawyers never to underestimate the effect of “bad karma.” “I have fired clients because I just didn’t like them, and they were a pain in the butt to deal with,” he says. “My withdrawing from the representation wasn’t going to put them at risk or prejudice them in any way. There are other lawyers they might relate to better. So I have said on several occasions, ‘Life is too short to spend it representing jerks.’ “ PROMPT ACTION But not all lawyers are assertive when it comes to terminating the attorney-client relationship. Rather than confront the issue themselves, “some lawyers think: ‘I’ll just wait for them [the client] to fire me,’ ” says Sandra L. DeGraw, a professional responsibility professor at South Texas College of Law in Houston. But DeGraw does not recommend this approach. Rather, a lawyer should try to end the relationship as soon as he realizes it is not going to work out and minimize any damage, DeGraw advises. “The longer it drags on, the more likely you will look like the culprit for not recognizing it,” she says. Not only that, you may get stuck. “If you wait too long, thinking things will get better but they don’t, it may get too close to trial to easily withdraw,” Waldrop says. Trying to withdraw from a case when a tribunal is involved may be complicated. A tribunal may order the lawyer to continue representation even if there is good cause for terminating the representation. The Texas Rules of Civil Procedure require an attorney to make a motion to withdraw, DeGraw says. But the court can still decide, even if that new attorney would be perfectly qualified, that the current attorney is too far into the case and deny the motion. When appointed by a court to represent a client, it may be even more difficult to withdraw, DeGraw says, because of concerns about delays and difficulties finding replacement counsel. “I think it is a different situation as to whether you are appointed or whether you are doing it [representing a client] for remuneration,” Hardin says. He adds, “If you are appointed by a court or judge, I think you have an obligation if at all possible to stay on the case no matter how big a jerk the person is.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at customer[email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.