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  • Zehava Schechter

Breaking up is hard to do

Q. The attorney representing me on my case is not returning my telephone calls and I have lost faith in his ability to get a good result for me. I want to hire another attorney and get my file from him to give to a new attorney. May I do this? If so, how? Also, if I end the relationship with my current attorney, will he be allowed to disclose confidential information I told him?

A. Breaking up is hard to do, as Neil Sedaka famously said. You get recommendations from family and friends, choose an attorney whom you believe will zealously represent your interests and get a good result, and then find it is not a good match for you. Like a spouse, an attorney (or other professional advisor) needs to be a good fit for you.

Professional advisors are expected to be available to their clients; failure to return telephone calls or e-mail messages within a reasonable time period is unprofessional and unacceptable. A Google search will turn up many disciplinary proceedings against attorneys due to a failure in communication between the attorney and the client.

Should you terminate your attorney’s representation of your case? This is a fact-specific question only you can answer. Do you think you can rehabilitate your relationship with your attorney? There may be extenuating circumstances which may have resolved in the meanwhile. If you feel you cannot continue this business relationship and/or you have lost your trust in the attorney, you may want to terminate this relationship - as nicely as possible.

So, now to the gritty details. Did you sign a Retainer (Engagement) Agreement which is a contract by which you hired the attorney to represent you in this matter? If so, pull it out and review the terms of engagement and termination. What is the procedure for terminating the representation? (It should be spelled out.) Do you owe the attorney money for legal fees or expenses? If so, the attorney may be able to keep your file until you pay the amounts owed. (By the way, even in a contingency (percentage) fee arrangement, clients are usually responsible for payment of expenses incurred – even if no legal fee is owed to the attorney). In addition, in any matter, the attorney may keep his/her notes and internal memoranda about your file pursuant to the Attorney Work-Product Doctrine.

By the way, an attorney may terminate his/her relationship with a client, as well. Here is a sample of grounds for an attorney to do so:

• The client insists on a claim or defense which is not supported by the facts or applicable law;

• The client acts unlawfully or wants the attorney to act unlawfully;

• The client does not pay legal bills for services or expenses (per a Retainer Agreement); or

• The attorney becomes mentally or physically incapacitated.

If the client does not agree to release the attorney from the Retainer Agreement, the attorney must request that the Court order him/her to be released.

The Attorney-Client privilege protects clients from disclosure of confidential information imparted to attorneys (without the presence of other people) and is intended to foster trust by clients in their representatives. It may not be waived by the attorney unless:

• The client confides that he/she intends to commit a future (not past) crime;

• The client waives the privilege;

• The attorney is ordered by a court to report the specific information; or

• The attorney is suing the client for unpaid fees or is defending against a malpractice action (in limited circumstances).

On the whole, separating from your attorney may be an unpleasant event – but one which may be necessary for your case to progress to resolution. Be sure to give the matter a great deal of consideration before you terminate the business relationship as there are many consequences as a result of a decision either way.

Good luck to you.

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