Breaking up with a client is something all personal injury attorneys do on a fairly regular basis. A lot of cases look promising. But an investigation and review of the medical records can sometimes paint a very different picture. This is particularly true in medical malpractice cases where the medical records read very differently from what the patient remembers or believes.
For the most part, lawyers are free, as the client is, to sever the attorney-client relationship. If you have already filed a lawsuit for the client, things are a bit more complication because you will need to get court permission withdrawing from the case. Before a case is actually filed, however, breaking up is a lot easier.
Maryland Ethical Rules
Terminating representation of an existing client is governed by Rule 19-301.16 of the Maryland Attorneys’ Rules of Professional Conduct. When there is no pending case an attorney can withdraw from the representation of the client for “good cause” so long as “withdraw can be accomplished without material adverse effect on the interests of the client.” Md. Rule 19-301.16(b)(1). Anytime representation of a client is terminated, subsection (d) imposes the following obligations on the outgoing attorney:
[u]pon termination of representation, an attorney 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 another attorney[.]
19-301.16(d) (emphasis added).
An Approaching Statute of Limitations
The question we are considering is what constitutes a reasonable termination of a pre-litigation personal injury client when the statute of limitations is about to expire on their claim. Specifically, when is it too late for an attorney to withdraw when a client is facing a statute of limitations deadline? Can you simply break up with a bad client 2 weeks before the statute of limitations will expire on their claims? What about 2 months before the deadline?
The answer to this question turns on the interpretation of what constitutes “reasonable notice” to the client so as to avoid “adverse effect on the interests of client” under Rule 19-301.16(d).
Unfortunately, there is no Maryland case law that directly answers this question. It does seem safe to say that breaking up with a client at the last minute will probably not get you suspended or disbarred (absent additional circumstances). No Maryland attorney has ever been formally sanctioned for terminating or withdrawing “too late” when the client was actually notified of the withdraw.
It is more likely that a last-minute break up might lead to a legal malpractice claim. But there are also no reported Maryland cases discussing 11th-hour client breakups in the context of legal malpractice. However, Maryland’s Rule on terminating representation of a client is based on the ABA Model Rules of Professional Conduct. This means case law from other jurisdictions that have adopted the same version of the ABA model rule has persuasive authority.
A review of the cases from other states that have the same version of the ABA model rule as Maryland on this issue suggests that there is no time period when it becomes “too late” to dump a client before their claim expires.
One clear them from the cases on this subject is that “how” is more important than “when” in the context of last-minute client breakups. In other words, the nature and circumstances of how you break up with the client are probably more important than the timing of when the breakup occurs.
For example, terminating a client with a one-sentence text message and then ignoring their calls and emails is probably not going to be considered “reasonable” even if you do it 1 year before their SOL expires. By contrast, you can probably break up with a client weeks before their deadline if you notify them in person and make a good faith effort to help them find another attorney right away.
Case Law in Other Jurisdictions
Below is a brief summary of the most relevant cases on the issue of attorney’s terminating clients prior to the expiration of their limitations deadline:
- Gilles v. Wiley, Malehorn & Sirota, 783 A.2d 756 (NJ App. Div. 2001) withdrawing by simple letter (with no call) less than two months before the client’s medical malpractice claim expired was held to be unreasonable. With only 2 months before the statute of limitations deadline, the attorney needed to do more than send a letter in the mail. He should have sent letter certified mail, called the client and took steps to help them find other counsel in time.
- Oyefodun v. Spears, 669 So. 2d 1261 (La. Ct. App. 4th Cir. 1996) withdrawing 10 months before the expiration of the limitations period was held to be reasonable. Withdraw was done by a detailed letter explaining the reason for the termination and advising a client when the statute of limitations expired on their claim.
- Jones v. Law Firm of Hill and Ponton, 223 F. Supp. 2d 1284 (M.D. Fla. 2002) terminating client by short letter 2.5 years before the expiration of the statute of limitations on her potential claims was considered reasonable because it gave her more than enough time to find replacement counsel.
- Bailey v. Martz, 488 N.E.2d 716 (Ind. Ct. App. 1986) terminating client 4 months before the expiration of the statute of limitations was considered a reasonable amount of time in a motorcycle accident case. Under the circumstances, 4 months was considered an adequate amount of time for the client to retain other counsel.
- Lockhart v. Greive, 834 P.2d 64 (Wash. App. 1992) withdraw of counsel 3.5 months prior to the expiration of limitations period on auto tort claim was reasonable, as clearly evidenced by the fact that the client successfully retained new counsel during that time period.
- Medrano v. Reyes, 902 S.W.2d 176 (Tex. App. 1995) withdrawing by letter 21 months before the statute of limitations ran out on potential wrongful death claim was considered reasonable, based solely on the length of time to find new counsel.