By Gary Schons
“Wow!” Pete lamented as he walked into his partner Judy’s office. “I just got fired by my client in the Butterfield case.”
“Isn’t that the business termination case you’ve worked up through discovery and have a partial summary judgment motion pending on?” asked Judy.
“Yep, that’s it. Old man Butterfield called me, said he was going with a different lawyer and wanted me to send the file to his new lawyer.”
“But don’t they owe us about $50,000 in fees at this point?” Judy asked.
“Yes, there’s that, and the motion is set to be heard in two weeks,” Pete replied. “I have half a mind to tell him to pay his fee before I send the file. And I certainly don’t plan to appear for the motion hearing.”
“Whoa! We’ve got some serious issues to sort through here before you do anything,” cautioned Judy.
Pete asked, “Like what? He fires me at this stage of the proceedings, gets a new lawyer, and just expects I’ll send the file to his new lawyer with $50K in fees owing, unpaid? And, so what if I don’t show up for the motion hearing? Butterfield clearly wants this new guy to handle it. He’ll be there with a substitution of counsel.”
“You can’t count on that,” Judy replied. “Look, I know you’re upset. Heck, I am, too; we’ve got a lot invested in that case. But let’s work through these issues first and not get on the wrong side of our ethical obligations.”
“I suppose you’re right,” Pete replied. “But, first, can he just fire me like that, without cause? This has never happened to me before.”
Judy hits the legal research site on her computer and ran a couple of word searches. “Look, Fracasse v. Brent, a ’72 Cal. Supreme opinion, 6 Cal.3d 784, quote: ‘the client’s power to discharge an attorney, with or without cause is absolute.’”
“Holy Apprentice,” Pete exclaimed. “I’m so fired.”
“Looks that way,” said Judy. “So, let’s bring up the Rules of Professional Conduct from the State Bar website. Googled it and got them right here,” Judy said as she worked over her computer. “Okay, let’s consider the request for the file, first.”
“Look here,” Judy directed. “Rule 3-700 on Termination of Employment. Subdivision (D) Papers, Property, and Fees. It says: ‘A member whose employment has terminated shall: (1) Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property.’ ‘Client papers and property’ includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not….”
“Boy, that’s no bueno,” said Pete. “Guess I have no choice but to send the file and can’t hold it ransom for our fees. But, what about my ‘work product’? I’ve already made extensive notes for the argument I planned to make for the motion hearing. Do I have to give that to the new attorney, too?”
“I don’t know,” Judy replied. “‘Work product’ isn’t mentioned in the rule. But, you know Charlie Walls. He’s on the County Bar’s Legal Ethics Committee. He’s always very helpful. When we’re done here, I’ll call him. The Ethics Committee has a hotline that might be helpful and I know the local bars in the big jurisdictions issue ethics opinions that might answer that question. We’ll see.” [In a later call, Charlie referred Judy to a State Bar Ethics Opinion with a number cites regarding this question—Formal Opinion No. 1994-134.]
“Okay, so I send the new lawyer the file, and I’m done. Don’t have to appear for the motions hearing and all we have to do is go after Butterfield for the fees he owes us,” Pete concluded.
“Not so fast,” Judy cautioned. “We’ve got to figure out if getting fired by the client means you’re off the ethical hook to represent the client competently.”
“Well, aren’t I between a rock a hard place?” Pete asked. “I have to give up the file but still represent the client? Sounds like I’m damned if I do, and damned if I don’t.”
“Rule 3-700 (A) says you have to have permission from the court to terminate employment, and, you can’t withdraw until you take reasonable steps to avoid prejudice to the client.” Judy said, summarizing the rule. “So, you’re not really fired, yet. You’re counsel of record until a substitution of counsel is filed with the court—I think that’s in CCP § 284. And, if you don’t go to the hearing and the new lawyer hasn’t filed a substitution of counsel and made arrangements for his appearance at the hearing or a continuance, you might hurt Butterfield on the motion. Don’t forget, rule 3-110 requires that you act competently so long as you are counsel of record.”
“So, I have to give up the file, but still be prepared to argue the motion?” Pete asked.
“That’s the way I read the rules, Pete, but I’ll run this by Charlie. My guess is that you should retain at least copies of those documents from the file you might need to argue the motion in the event the new lawyer does file a timely substitution. That way you can fulfill both your obligation to provide the file and to act competently.”
“Boy, thanks, Judy. It’s great having a partner like you,” Pete offered. “I’ll call the new lawyer, arrange to get the file over to him and make sure he is going to prepare the substitution of attorney for filing and be ready on the motion hearing. And, I’ll copy the docs. I might need for the hearing. My old Professional Responsibility professor warned us there’d be days like this.”
Gary Schons is of counsel with Best Best & Krieger LLP.
No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.
This article was originally published in the SDCBA’s “Ethics in Brief” column series.