Professional and ethical rules require lawyers to treat their clients with care, skill and loyalty. Attorneys generally assume that they owe these duties to their clients as long as the attorney-client relationship exists.

But when does the attorney-client relationship end? Is it over when the lawyer refers the client to other counsel? Is it over when the lawyer or the client dies? Is it over when the client refuses to pay attorney's fees?

The attorney-client relationship is consensual, likened to a contract between a principal and agent. In general, an attorney's liability for malpractice terminates when the relationship ends. In most cases, this occurs when the lawyer completes the client's objective. Although a lawyer may be bound by ethical and fiduciary duties even after the relationship has ended, such as the duty to maintain client confidences, the duty to exercise due care and diligence and therefore the lawyer's liability for professional negligence ends when the relationship ends.

Malpractice avoidance clearly requires more than a casual understanding of the circumstances that permit or require termination of the relationship and of the precautions that should be taken at termination. This article explores the lawyer's duties and potential liabilities in a variety of situations from a malpractice prevention perspective.

Discharge By Client
One of the basic concepts of the practice of law is that the client is entitled to be represented by counsel of his or her choice. It follows that a client may terminate his attorney at will, and with or without cause. Herbster v. North American Co., 150 Ill.App.3d 21, 501 N.E.2d 343 (1986). This rule is deeply rooted in the personal nature of the attorney-client relationship and in the need to avoid friction and distrust between the lawyer and client. The client's right to terminate also includes the right to substitute other counsel. See, e.g., Savich v. Savich, 12 Ill.2d 454, 147 N.E.2d 85 (1957).

The right to choose counsel is not without limitation, however, particularly in the field of litigation. The client's latitude in selecting, discharging or substituting counsel is not "so absolute that its exercise may not be denied where it will unduly prejudice the other party or interfere with the administration of justice." People v. Franklin, 415 Ill. 514, 516-17, 114 N.E.2d 661, 663 (1953). Thus, once a trial has commenced, substitution or withdrawal may be denied in the absence of some "valid reason." See, e.g., Marriage of Milovich, 105 Ill.App.3d 596, 434 N.E.2d 881 (1982).

Interestingly, the client's right to discharge his attorney at will is a term of the contract implied by law because of the special relationship between the attorney and the client. LaRocco v. Bakwin, 108 Ill.App.3d 723, 439 N.E.2d 537 (1982). Thus, the lawyer cannot seek contract damages after he has been terminated by the client, nor may he sue his former client for employment discrimination or retaliatory discharge. However, interference with the relationship between an attorney and his client may be actionable, even if the relationship is terrainable at will. See, e.g., Herbster; LaRocco, supra.

Dodging A Bullet
Discharge by the client can stave off a malpractice claim, according to two Illinois cases. In Land v. Greenwood, 133 Ill.App.3d 537,478 N.E.2d 1203 (4th Dist. 1985), an attorney was retained to prosecute a personal-injury claim. He filed an action the day before the statute of limitations expired, but failed to serve a number of defendants with process. His client thereafter discharged him and hired a successor attorney, who perfected service on various defendants but was met with multiple motions to dismiss based on the prior lawyer's lack diligence in obtaining service. The motions were allowed and the suit dismissed.

The client then sued the discharged attorney, claiming that the lawyer's delay in serving process resulted in the dismissal. However, the appellate court affirmed a dismissal of the malpractice claim on the basis that the client, after discharging his prior attorney, had failed to avail himself of the option to take a voluntary nonsuit under Section 2-1009 of the Code of Civil Procedure, which at the time would have allowed him an additional year to bring his action. The client argued that his successor attorney had no duty to take such corrective measures to "rescue" discharged counsel. This argument was rejected because it was successor counsel who had assumed the duty to preserve his client's cause of action. The court applied the simple logic that the client's claim "was viable when he received it; it was not when he got through with it."

In another oft-cited malpractice case, Dolce v. Gamberdino, 60 Ill.App.3d 124, 376 N.E.2d 273 (1978), the client discharged her attorney several weeks before her workers compensation filing period ended. After being discharged, it was held, the lawyer had no authority to act in the client's behalf. Thereafter, the client and her new attorney were charged with the responsibility to calculate her limitations date.

Both cases illustrate that a discharged attorney's malpractice exposure can be cut off if the attorney-client relationship is terminated before a client's rights have been irretrievably lost. They also illustrate that the successor attorney may be liable for the sins of his predecessor if a viable claim is placed in his hands.

Withdrawal From Employment
An attorney's right to withdraw from the attorney-client relationship is somewhat restricted by the lawyer's special position. Under the Code of Professional Responsibility, D.R. 2-110, an attorney representing a client before a tribunal must obtain permission from the tribunal to withdraw. The state court procedures for withdrawal are found in Supreme Court Rule 13. Most importantly, Rule 13(c) binds an attorney who files a written appearance on behalf of a client before any court in Illinois to continue to represent that client in that case until the court, after notice and written motion, grants withdrawal. This is true whether or not a final judgment has been entered or the attorney's contract of employment has been carried out.

Strict adherence to withdrawal procedures is mandatory for state court litigation attorneys; however, Supreme Court Rule 13 provides practical guidelines for malpractice avoidance that should be considered by withdrawing attorneys in non-litigated situations as well. One such universally beneficial procedure is the service of written notice of withdrawal by certified mail or personal service on the client.

Withdrawal Versus Abandonment
The basic rule of thumb is that a lawyer cannot abandon his client. Thus, under D.R. 2-110(2), a lawyer cannot withdraw until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client. Those steps include giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and pales. Under this rule, a lawyer who withdraws from employment must also refund promptly any part of a fee paid in advance that has not been earned.

A lawyer seeking to withdraw under any circumstances should carefully review D.R. 2-110. Couched in terms of"foreseeability" and "reasonableness," the rule is apt to be interpreted as evidence of the standards of care owed by an attorney withdrawing from his client's representation.

Although malpractice liability may not result, it is worth noting that strict adherence to D.R. 2-110 requires that a lawyer not even request permission to withdraw in matters pending before a tribunal or begin to withdraw from any client engagement, unless that request is because of one of several enumerate grounds for permissive or mandatory withdrawal. However, a lawyer will rarely be precluded from seeking withdrawal for any reason, as long as his client knowingly and freely assents to it.

Under certain circumstances listed in D.R. 2-110, such as when the lawyer is discharged by his client, withdrawal is mandatory. D.R. 5-102 requires withdrawal when the attorney learns that, in contemplated or pending litigation, he or his firm may be called as a witness. Rule 5-105 requires that attorneys refuse to accept or continue employment if client conflicts arise that may impair the independent professional judgment of the lawyer.

Withdrawal in Federal Practice
Rule 3.15 of the District Court for the Northern District of Illinois governs attorney withdrawal in federal court. Under that rule, an attorney of record, and particularly a member of the trial bar, may not withdraw or be substituted without first obtaining leave of court,. The grant or denial of an attorney's motion to withdraw is discretionary. Washington v. Sherwin Real Estate Inc., 694 F.2d 1081 (7th Cir. 1982). In determining whether sufficient grounds exist, the federal court generally looks to D.R. 2-110, D.R. 5-102 and D.R. 5-105.

In Washington, an attorney was granted a permissive withdrawal when his clients refused to follow his advice to accept a settlement and instead demanded a trial. Not only was the withdrawal permitted only two days before trial, but the court also ordered the plaintiffs to proceed to trial pro se, without a recess or continuance.

Local Rule 3.85 governs discharge or withdrawal of court-appointed counsel. In addition, Anders v. California, 386 U.S. 738 (1967), permits an appointed appellate counsel to withdraw after he has thoroughly reviewed the record, has considered any issues raised or that might be raised by his client, and has determined that they are frivolous.

Completion Of The Client's Objective
Typically, the attorney-client relationship terminates by operation of law on completion of the client's objective. See generally Herbster v. North American Co. Likewise, the authority of the attorney terminates when the matter for which he has been retained ends - just as accomplishment of an authorized act terminates an agent's powers. See Restatement, Second, Agency, Sec. 106 (1958); People v. Wos, 395 I11. 172, 69 N.E.2d 858 (1946).

In People v. Wos, the Illinois Supreme Court expressed the rule that in litigation, the attorney-client relationship ceases upon the rendition of a "judgment and satisfaction thereof," unless special circumstances exist showing a continuation of the relationship. However, Wos, a criminal case, leaves ambiguous whether the relationship terminates at the rendition or the satisfaction of a civil judgment. in the criminal context, an attorney-client relationship is presumed terminated when the defendant is committed to the penitentiary.

Completion of the client's objective may curtail an attorney's malpractice exposure, even for subsequent negligence that causes incidental harm to the former client. For example, in York v. Steifel, 109 Ill.App.3d 342, 440 N.E.2d 440 (1982), aff'd in part, rev'd in part, 99 Ill.2d 312, 458 N.E.2d, 488 (1984), it was held that the spouses of two clients maintaining a legal malpractice action were clearly not clients of the defendant attorney. Despite testimony that the attorney on an earlier occasion represented both couples in the sales of their homes, the earlier completed matters were not related to the matters involved in the malpractice litigation.

Disengagement Letter
Completion of the client's objective ends the attorney-client relationship. However, in terms of malpractice avoidance, a lawyer's final report or "disengagement" letter to the client - advising of the completed objective and the resultant termination of the relationship - is prudent practice. Such a letter not only will serve to document the discharge of the lawyer's duty in the event of a dispute, but it should also signal to the client, in concrete terms, that the attorney-client relationship has ended.

Death Of The Client
Generally, the relationship between attorney and client is terminated by the client's death. The authority to continue to represent the interest of a deceased client must come from the personal representatives of the decedent. In Re Marriage of Fredricksen, 159 Ill.App.3d 743,512 N.E.2d 1080 (1987). This requirement tracks the traditional agency rule that the death of the principal terminates the authority of the agent, in the absence of special circumstances. See Restatement, Second, Agency, Sec. 120 (1958). Should a client die during litigation, the attorney must observe the procedural requirements of Section 2-1008 of the Code of Civil Procedure. Foremost, he must obtain the personal representative's authority to continue the representation unless the representation, by its terms, was to extend beyond the death of the client. See, e.g., In Re Richmonds Estate, 1 Ill.App.2d 310, 117 N.E.2d 583 (1953).

Malpractice committed by an unauthorized attorney after the client's death may not adversely affect rights that survive the decedent's death. For example, in Fountas v. Breed, 11 Ill.App.3d 69, 455 N.E.2d 200 (1983), it was held that it would be "improper" to impute a waiver caused by an attorney's "unauthorized" conduct after the client's death "so as to retroactively bar a perfectly good cause of action."

Death Or Disability Of The Attorney
The attorney-client relationship expires with the death of lawyer. In Re Heirich, 10 Ill.App.2d 1057, 140 N.E.2d 825, cert. denied, 355 U.S. 805 (1957); see Restatement, Second, Agency, Sec. 121 (1958). The Heirich court also stated the rule that the personal representative of a deceased lawyer may not assign pending cases to other counsel; rather, that choice must remain with the client.

A lawyer's mental or physical impairment also may require withdrawal from employment under D.R. 2-110. Withdrawal is mandatory where a lawyer's mental or physical condition renders it unreasonably difficult to carry out the employment effectively; D.R. 2-110(b) (3). By contrast, permissive withdrawal is granted under D.R. 2-110(c)(4) when the lawyer's mental or physical condition renders it merely difficult for him to carry out the employment effectively. Likewise, under agency rules, a lawyer's loss of capacity to perform for the client terminates or suspends his authority to act. See Restatement, Second, Agency, Sec. 122 (1958). Most importantly, in terms of malpractice prevention, it remains the lawyer's burden to reasonably determine whether his physical or mental condition prevents him from effectively carrying out his duties, and whether his withdrawal is permissive or mandatory.

Dissolution Of Law Partnership
In the case of a law firm's dissolution, lawyers and clients are not on an equal footing. The dissolution does not extinguish the firm's contractual relations with its clients. Saltzberg v. Fishman, 123 Ill.App.3d 447, 462 N.E. 2d 901 (1984). Thus, dissolution does not terminate the individual partner's malpractice exposure. Yet, each client of a dissoluting or dissolved partnership may choose to be represented by any member of the partnership or by any other attorney. Ellerby v. Spiecer, 138 Ill.App.3d 77, 485 N.E.2d 413 (1985).

An individual partner is not authorized to take any unilateral action with respect to the firm's unfinished client matters, including contingent fee cases. In addition, a partner may not take any action that would place the clients of the dissolved firm in the middle of a dispute among the partners over money. Ellerby, supra.

Client's Claim For Malpractice
A breakdown of the attorney-client relationship serves as good cause for withdrawal. Because the relationship is based on trust and confidentiality, when those foundations deteriorate the attorney must withdraw under D.R. 5-105. A suit for malpractice can only be deemed such a breakdown.

Although no Illinois decision has considered the point, the Indiana Court of Appeals ruled that two attorneys, who refused to continue to represent a client because they were guilty of malpractice, were justified as long as they followed the ethical rules pertaining to withdrawal. Baily v. Martz, 488 N.E.2d 716 (Ind.App. 1986). Because the claim of malpractice puts the attorney and client in a conflict of interest, the relationship should be considered terminated at that juncture, both under ethical rules and general agency principles. See Restatement, Second, Agency, Sec. 111 (1958).

Client's Complaint With The ARDC
Our appellate court recently considered the rights and duties of an attorney whose client had filed a complaint against him with the Attorney Registration and Disciplinary Commission (ARDC). In Reed Yates Farms, Inc. v. Yates, 172 Ill.App.3d, 519, 526 N.E.2d 115 (1988), the court held that the client's filing of the complaint necessitated the attorney's withdrawal because the situation involved a breakdown in the attorney-client relationship. The client's ARDC complaint, which "impugn[ed]" the attorney's integrity by alleging the attorney deliberately misinformed the client, was considered "good cause" for withdrawal.

In Reed Yates Farms, not only was the lawyer justified in withdrawing, but also the unethical conduct alleged in the ARDC complaint could not be used to bar the attorney's recovery of fees. The court recognized that the Supreme Court has exclusive and plenary jurisdiction over attorney discipline and that the ARDC proceedings were conducted separate and apart from the judicial proceedings. A reduction in the fees therefore would be considered a sanction and an impermissible infringement on the exclusive power of the Supreme Court to oversee attorney discipline. The court also acknowledged that the unethical conduct might be a matter relevant to determining whether the attorney fulfilled his contractual obligations to the client. It further ruled that expert testimony would be necessary to establish the degree to which the attorney's alleged malfeasance reduced the value of his services. The court further refused to order the attorney to return the $10,000 non-returnable retainer fee paid by the client.

Of Successor Attorneys
A substituting or successor attorney is bound by the same professional duties and malpractice liabilities attending all attorney-client relationships. As illustrated above, the successor attorney may also inherit any errors or omissions of the prior discharged attorney. The successor has a duty to preserve his client's viable cause of action, and may have to act to "rescue" prior counsel. Land v. Greenwood, 113 Ill.App.3d 537, 478 N.E.2d 1203 (1985).

In one case, the appellate court reversed summary judgment in favor of a substituted trial attorney who had been hired by prior counsel literally on the eve of trial because of prior counsel's conflicting trial engagement. The client complained, among other things, that both his prior counsel and substituted attorney had failed to adequately conduct discovery and prepare for trial. The malpractice case was permitted to go forward despite the trial court's refusal to allow a continuance. Gelsomino v. Gorov, 149 Ill.App.3d 809, 502 N.E.2d 264 (1986).

Subsequent attorneys also may be subject to a malpractice action for contribution, as long as an attorney-client relationship is established and the "same injury" is involved, although it remains undecided in Illinois whether such actions might contravene public policy if contribution is sought from a client's current legal representative. See Roberts v. Heilgeist, 124 Ill.App.3d 1082, 465 N.E.2d 658 (1984).

Conclusion
Because a lawyer's duties to exercise due care and skill will continue as long as the attorney-client relationship exists, a prudent lawyer must understand the events that end it in every case. In most cases, this will automatically occur at the successful completion of the client's objectives.

In terminating the relationship, it is the lawyer's burden to avoid abandonment and prejudice to the client. Careful attention to the Supreme Court Rules and the Code of Professional Responsibility, and the use of "disengagement" letters, will provide the practitioner with the best guidelines for malpractice avoidance when the attorney-client relationship ends. Finally, both referring and successor attorneys must understand that they may be at risk for malpractice liability for the negligent acts of other lawyers.

This publication has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.