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Friday, August 14, 2015

Attorney Termination of an Attorney-Client Relationship in North Carolina

Attorney Termination of an Attorney-Client Relationship in North Carolina



This topic came up again at yesterday's Mecklenburg County Bar Solo & Small Firm Section meeting, and I thought I would this publicize the below email exchange between myself and the North Carolina State Bar (ethics counsel). The below is not intended to be a comprehensive guide on this topic, but should be helpful in handling this often tricky situation. Good luck!

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From: Jason McGrath [mailto:jason@McGrathSpielberger.com]
Sent: Sunday, July 06, 2014 2:31 PM
To: Ethics Advice
Subject: Q regarding cessation of work when client not in compliance with the attorney-client agreement

Good afternoon. I would appreciate your guidance on a very fundamental issue: whether there are any prohibitions on ceasing work if client has failed to pay fees as agreed, or has ceased all communication and stopped participating in the matter for a sufficient time. Briefly:


  1. Written and executed attorney-client agreement (“ACA”).

  2. ACA states that included in client’s duties are: (a) the need to pay the fees as agreed; and (b) the need to actively participate and timely communicate with regard to the case.

  3. ACA states that firm/attorney is not required to continue work, unless otherwise required by court order or the rules of professional conduct, if client does not pay as agreed. and/or does not actively participate and communicate.

  4. Client has not paid as agreed, and reasonable efforts to get Client to do so have failed . ..  AND/OR 4(a) Client has ceased participation and is non-responsive, and reasonable follow up efforts have failed to gain contact or response.



As long as firm/attorney is following the agreed-upon terms of the ACA, and there is no court order, etc. to the contrary, is there any reason that firm/attorney cannot cease work on the file, notifying Client of same, due to Client’s non-compliance?

Thank you!

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RESPONSE FROM NC STATE BAR:

Jason,

Thank you for your inquiry.

You need to follow Rule 1.16(c) and (d).

Rule 1.16 Declining or Terminating Representation



(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

In addition, you should send the client a disengagement letter.

A Disengagement Letter Should:


  • Provide reasonable notice.

  • Identify the matter that is the subject of the letter.

  • Clearly state the position of the firm/lawyer in terminating the employment and the reason for the termination.

  • Affirm the current status of the case and remind the client of any pending deadlines. (Recommendations from malpractice carriers are to be careful with statements about exact dates or deadlines because a misstatement can expose the lawyer to a malpractice claim.)

  • If a matter is in court, explain that the lawyer is filing a motion to withdraw and that the lawyer remains counsel of record unless and until the court allows her to withdraw.

  • Encourage the client to seek other legal counsel as soon as possible.

  • Summarize the status of any fees and costs collected and outstanding.

  • Explain any remaining charges for legal fees.

  • Include arrangements for transfer of funds on deposit in the trust account.

  • Include arrangements to transfer client file.

  • Suggest that the client keep copies of any documents you have sent them in the matter.



Please let me know if I can assist you further.

 

Assistant Ethics Counsel

North Carolina State Bar

PO Box 25908

Raleigh, NC 27611-5908

919-828-4620, ext. 238

Please be advised that the contents of this message and any reply may be subject to disclosure under North Carolina law. Informal ethics inquiries and advisories communicated via electronic mail are confidential pursuant to Rule 1.6 of the Rules of Professional Conduct. Attorney Client Assistance Program communications and Lawyer Assistance Program client communications via electronic mail are also treated as confidential pursuant to Rule 1.6 of the Rules of Professional Conduct and N.C. Gen. Stat. 84-32.1.