Show Me The Money: Lawyers May Withdraw If Not Paid Fees

The American Bar Association released Formal Opinion 476, which addresses whether a lawyer can withdraw from a civil case because a client failed to pay the lawyer’s fees, without jeopardizing the duty of confidentiality and balancing this with information that the Court would need to consider granting a lawyer’s motion to withdraw. Withdrawal from a case in any instance invokes ABA Model Rule 1.6—Confidentiality of Information—however, lawyers may choose to withdraw from a case under Rule 1.16(b): Declining or Terminating Representation.

Failure to pay a lawyer’s fees is one reason a lawyer may withdraw from a civil litigation matter under 1.16(b)(5). A lawyer cannot go too in-depth and disclose confidential client information in motions for withdrawal, but previous opinions and Comment 16 to Rule 1.6 permit a lawyer to advise the court that “professional considerations” require withdrawing from the case.

Trial court judges also have to be aware of this balancing act between confidentiality and withdrawal because of unpaid fees. Judges have wide discretion in ruling on such motions. Along with considering the lawyer’s reasons, judges must consider the Court’s calendar and how the withdrawal will impact the parties to the case. Withdrawal motions are less problematic in earlier stages of litigation when these factors (along with the reasons the lawyer provides) are considered; when the case is further along and the trial is approaching, it falls more to the judge’s discretion.

In order to avoid breaching confidentiality when withdrawing over unpaid fees, a lawyer could vaguely reference “professional considerations” with no client information and persuade the court that more is not necessary. Or, if needed the lawyer may submit information deemed reasonably necessary by the court to minimize disclosure if it is appropriate. Lawyers and judges must cooperate in order to protect client confidentiality in motions for withdrawal.

The District of Columbia Bar Issues Social Media Guidelines

The District of Columbia Bar is the most recent state bar to issue social media guidelines.

Acknowledging the ubiquitous nature of social media, the D.C. Bar joins the growing chorus of state advisory opinions that suggest that competence requires an understanding of social media.

The D.C. Bar opted to discuss social media in two separate opinions, one opinion focused on marketing and the other opinion dealing with the use of social media in the practice of the law.

The D.C. opinions echo other state guidance in applying the traditional professional conduct standards to the use of social media. In other words, attorneys should employ social media to enhance effective representation without crossing the lines into pretexting or other impermissible conduct. D.C. also adds insight into the impact may have in a regulatory or transactional practice. In the marketing arena, an attorney must adhere to the attorney advertising rules and diligently monitor her social media presence for accuracy and compliance with the rules.

To read the D.C. Opinions, click here and here.

Mississippi Court of Appeals: A Bar Complaint Does not Toll the Statute of Limitations on a Legal Malpractice Claim

The Mississippi Court of Appeals recent decision in Archer v. Creefound holds that a client’s state bar complaint against a lawyer does not toll the statute of limitations on that client’s legal malpractice claim. Regardless of the bar proceedings, the beginning of the life of a legal malpractice claim is when the client learns of his or her lawyer’s negligence or malpractice.

The case arose from the following facts. In 2010, Mary Archer hired an attorney, Mitchell Creel, to represent her brother in post-conviction proceedings. She eventually fired him and filed a bar complaint about a breach of contract. The bar complaint was dismissed in 2012. She then filed a legal malpractice lawsuit.

In Mississippi, there is a three-year statute of limitations on legal malpractice claims, and the clock begins to run on the first day the client is aware of his or her lawyer’s negligence.

Nonetheless, Archer argued that a client must wait to sue until after an administrative remedy, such as the bar complaint, is exhausted. Her reasoning was that a lawsuit is untimely when it is filed during the pendency of bar proceedings.

However, both the Mississippi trial court and the Mississippi appellate court disagreed with Archer finding that the clock on the statute of limitations runs independently of a bar complaint. Thus, in Archer’s case, the statute of limitations began running when Archer fired her lawyer, based upon allegations of bar violations and malpractice, rather than after the bar complaint was dismissed.

To read the full opinion of Archer v. Creel, click here.