Colorado Supreme Court
Office of Attorney Regulation Counsel
Promoting Professionalism. Protecting the Public.
Know When to
Hold ‘Em, Know When to Fold ‘Em
Avoid the
perils of the attorney-client relationship by clearly communicating when
representation begins and ends.
By CHARLES
E. MORTIMER
Winter 2014
Many rules
of professional conduct apply only when a lawyer is representing a client. You
can subject yourself to these rules unwittingly.
An
attorney-client relationship is easily created. The relationship is
“established when it is shown that the client seeks and receives the advice of
a lawyer on the legal consequences of the client’s past or contemplated
actions.”[1] If the client believes you are his attorney,
and if there is some reasonable basis for that belief, then you are his attorney. Your relationship will
then be governed by, and your conduct will be judged against, all of the Rules
of Professional Conduct.
Once the
attorney-client relationship is established, it is “an ongoing relationship
giving rise to a continuing duty to the client unless and until the client
clearly understands, or reasonably should understand, that the relationship is
no longer to be depended on.”[2] You’re in until you take measures to get
out.
Lawyers
should take great care to let the client know when the relationship has begun
and when it has ended. Otherwise, the lawyer may be subject to a variety of ethics
and professional liability claims from a person who believes that he is a client,
even though the lawyer does not. It is crucial that the lawyer take steps to
define the boundaries of the representation.
First, let
the client know, in writing, the existence and scope of the representation at
the outset. For instance, with what specific legal matter will you help the
client? Or are you declining to represent this person?
Second, in a
litigation matter a lawyer should file a motion to withdraw or, if appropriate,
notice of withdrawal. Even after you move to withdraw, you remain your client’s
lawyer, and owe all of the duties provided by the Rules of Professional Conduct,
until the motion is granted. If the matter is complete, promptly file a notice
of withdrawal. As long as you are counsel of record in a matter, you will
receive all pleadings and other documents filed in the case. Your client will
not, and you have a duty to provide those to your client. In addition, your
client may be prevented from filing anything pro se or even making an appearance as long as court records show
that you’re their representative. As
long as you are counsel of record, your client may reasonably expect you to
give ongoing advice concerning changes in the law that are applicable to his situation,
and you may subject yourself to conflict-of-interest charges if you take a
cases that are adverse to a client for whom you are counsel of record. If the representation is limited or
“unbundled” under C.R.C.P. 11 (b), then make sure you give the notice described
in C.R.C.P. 121 Section 1-1, (5).
Third, send
your client a letter explaining that the representation has ended. Don’t expect
the client to understand what a “notice of withdrawal,” or even an “order granting
withdrawal,” means. And just because your involvement in the litigation may
have come to an end, it does not necessarily follow that you’re no longer
counseling the client on the legal matter. If the representation has ended, tell
the client so in no uncertain terms. By doing so you have eliminated any
reasonable basis for the client to believe that you still represent them.
Consider the
termination letter a great opportunity to demonstrate interest in your client, educate
the client about your practice and develop future opportunities to represent
the client and her colleagues.
Charles E.
Mortimer is Deputy Regulation Counsel in the Office of Attorney Regulation
Counsel.