In another South Carolina appellate court opinion intended, in my opinion, to send a clear message to the bar that the practice of law in this State is first and foremost a profession with inherent professional responsibilities, on August 27, 2014, the South Carolina Court of Appeals in a published opinion in the case of Tuten v. Joel stated the following in part:
“The principle that an attorney may not unilaterally withdraw from an attorney-client relationship without notice to the client is fundamental to the fiduciary nature of legal representation (citations omitted throughout) (‘Strong policy considerations dictate that a client…must be unequivocally informed when an attorney intends to withdraw from representing a party, for whatever reason.’ ‘An attorney who undertakes the conduct of an action impliedly stipulates to carry it to its termination and is not at liberty to abandon it without…reasonable notice.’).
The contrary position – taken by Joel – that an attorney’s uncommunicated choice to withdraw from representation is effective unless the attorney ‘leads the client to believe he is still the lawyer’ is indefensible and fails as a matter of law. The position is so rarely taken that courts have hardly ever been called upon to write about it. (‘It is well settled that an attorney who wants to withdraw from representing a client must notify the client in advance and notify the client of the grounds for withdrawal even in a situation where a client ‘effectively disappeared’ and (the) attorney (is) unable to contact (the client)’).
An attorney is not free to withdraw from the relationship absent notice to his client and in determining when the attorney-client relationship is terminated, the court must point to an affirmative act by either the attorney or the client that signals the end of the relationship. (‘…most courts require that before an attorney can unilaterally sever the attorney-client relationship, he must give reasonable notice to his client of his intention to withdraw, and, noting, further requirements are necessary if the withdrawal involves a matter pending in court’).” (Emphasis added)
In protecting your professional position – in the event you have reached an irreconcilable point in your relationship with your client – I might suggest that you consider doing the following (this list is far from being all-inclusive):
- Contact Professor John Freeman for his expert advice (of interest, Professor Freeman was the plaintiff’s expert witness in this case).
- Craft a detailed and carefully worded retainer agreement which provides an exact template to be followed by your client and you in the event you reach a point where it is necessary to sever the attorney-client relationship.
- “Reasonable notice” to me means that, unless your client has gone AWOL, you should conduct an in-office conference with your client, allowing the client to retrieve his/her file and sign all releases of representation previously addressed in your retainer agreement (but remember that if a case is pending in court, you must get a court order relieving you as the attorney-of-record). If I were you, I would be careful not to interpret “reasonable notice” as meaning that you can simply send a letter, email or text message to your client. Because there are professional risks involved when you have reached the point where you feel you have no choice but to “fire” your client, don’t take the path of least resistance when ending this critical relationship.