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The Blame Game: Improper Excuses for Lack of Proper Attorney Actions

Attorneys have an obligation to represent clients zealously and competently. Although an attorney’s other obligations may impact scheduling and timing of client duties, an attorney’s “real world problems” do not excuse a failure to handle the client’s issues competently.

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FOUR COMMON “NON-EXCUSES” for an attorney’s failure to handle a client’s issues properly:

1. Other Clients/Unusually Heavy Workload/Scheduling Issues. Attorneys are responsible for taking on only the number of clients  that the attorney can handle competently. Heavy workloads, other clients’ issues, and scheduling problems do NOT normally excuse an attorney’s failure to properly represent a client. As comment 2 to ABA Model Rule 1.3 states, “A lawyer’s workload must be controlled so that each matter can be handled competently.”

2. A Belief that the Client’s Claim Lacks Merit or Value.  Even if an attorney believes that a client’s claim or issue lacks merit, the attorney must continue to represent the client, and perform all reasonably necessary tasks associated with proper representation of the client’s claim or issue, until the attorney has properly withdrawn as counsel. Withdrawal should be accomplished in writing, and clearly stated, so the client does not believe that he or she is still being represented by the withdrawing attorney.

However: an attorney who believes the client’s claim lacks merit does have the right to withdraw as counsel, with only a few exceptions. As long as none of those (relatively rare) exceptions apply, a client cannot force an attorney to continue representation after the attorney has withdrawn or terminated the attorney-client relationship.,

3. Personal Problems. A lawyer’s personal or family problems do not justify the attorney’s failure to provide competent representation. Lawyers must place the client’s interests first, even when facing serious personal problems inside or outside the office. While serious mental or physical problems may lessen disciplinary action taken against an attorney by the Bar, as a general rule, not even these types of problems will eliminate the attorney’s liability to the client for failure to give proper representation. If an attorney develops personal problems, including mental or physical limitations, which will (or are likely to) negatively impact the attorney’s ability to represent the client properly, the attorney should withdraw from representation immediately (using proper, legally permitted procedures) and advise the client to obtain alternate representation.

4. The Client’s Failure to Pay. The client’s failure to pay an attorney’s bills does not excuse the attorney’s failure to provide effective, competent representation. This is true even when the client signed a retainer agreement which states (a) that billings are due when sent, (b) that the client is in breach if the client fails to pay billings promptly, and/or (c) that the attorney does not have to continue providing representation if the client fails to pay bills when sent or due.  A client who fails to pay the attorney’s fees is entitled to competent representation until the attorney withdraws as counsel. However, nonpayment of fees does constitute grounds justifying the attorney’s decision to withdraw from representing the non-paying client. 

 

DON’T WAIT TO SEEK A SECOND OPINION

Clients who hire an attorney, but find themselves without proper representation due to the lawyer’s scheduling issues, personal problems, or the attorney’s belief that the client’s issue lacks sufficient merit to proceed should consider consulting an experienced malpractice attorney to see whether the first attorney’s actions violate the rules governing proper attorney conduct.

Clients should also pay their attorneys promptly, and in accordance with the attorney’s retainer contract. If the client refuses to pay because (s)he believes the attorney has not engaged in proper conduct, the client should seek a second opinion and, if appropriate, fire the attorney and dispute the bill. However, clients should never simply stop paying an attorney and wait around to see what the attorney will do when the bill is not paid.

If you suspect that your attorney has secondary or outside issues interfering with representation of your case and issues, seek a second opinion promptly. Don’t let your claims, or your rights, suffer injury that could have been avoided. 

 © Ross Law, 2014

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