A few months ago, I terminated representation of a particular client. There are many reasons representation ends – and from a factual standpoint, they are no one’s business except me and the client. The reasons for that are quite simple: I am duty bound to keep the confidences of my client. My fired client then went to another attorney who, after meeting with him, decided to call me.
“Why did you fire the client?” I was asked.
“You know that I cannot disclose the reasons why.” I replied.
“Oh, is that how you want to play?!” was the intemperate response. The conversation then got a tad ugly, and the new attorney insinuating all sorts of nice things. None of which were true – and none of which I could discuss.
And all I could do was sit there in silence.
I’ve parted ways with clients in the past, and I have no doubt it will happen at some point in the future. I can safely say after practicing law for almost 19 years: it happens. Sometimes things just don’t work out (as an aside, how many lawyer blogs will you find such an honest admission?). Sometimes, I have to fire the client. Sometimes, the client has to fire me. The reasons for termination are between me and the client – unless the client gives me authorization to speak freely – which in this particular instance, I did not have. Any lawyer that tells you that they have never been in this predicament is lying.
“Well how about I get a fully signed authorization,” he continued with a sarcastic tone. “Will you tell me then?”
“Of course,” I replied. The conversation ended my reminding him of my ethical responsibilities…since he clearly didn’t have a clue about them. Yet even though I took the high road, I’ve been stewing about it.
The secrecy and privilege of communications between attorney and client is for the client to waive, and for the attorney to protect unless the client has waived it. We learn this in law school. Yet there are attorneys – and this would be one of them – who believes that it is a “professional courtesy” to merely have an open and frank discussion of client matters that are confidential and that I am otherwise legally required to keep confidential.
And he’s not alone. In another matter, many more months ago, a client came to me suggesting that his prior counsel had done what some might be perceived as a half-assed job on his bankruptcy case. After reviewing the file, I determined that the attorney did do a half-assed job. However, I had no need to speak to the prior attorney to learn anything more about the case that I could not learn directly from my client or from the file.
The attorney called me and left a message – and later told me in an elevator at the courthouse (when he was there on an unrelated matter) that he was troubled that I did not give him the “professional courtesy” of phone call. I found it odd. This particular attorney also got rather loud to a point where he was no longer using his indoor voice when he was mentioning that I should have called him “out of professional courtesy.”
Yet, I had no reason to call him. I had no reason to speak to him. As a matter of fact, I had determined that speaking to him might not serve my client’s interests at all. And the experienced attorney (at least in terms of years) I spoke to more recently had no reason to speak to me, and certainly, I had no authorization from the client to speak with this attorney. Not only did I have no reason to speak to him. He had no reason – or basis – to expect that I would speak to him. Or did he?
The rules of professional conduct that guide how attorneys do their jobs (and they vary from state to state) provide certain limited exceptions to when an attorney must remain silent. For example, if the client is trying to “throw me under the bus” – like accuse me of malpractice – I don’t necessarily have to remain silent. Also, I have to speak up to prevent a crime that I reasonably believe will happen if I don’t speak up. When a client calls me and says “I am going to beat up my boss”, I cannot sit silent if I think the client is serious (although that really is a very simplistic way of describing the ethical dilemma that might arise if I were so fortunate to receive such a call).
Professional courtesy is measured rather simply. If I drop my pen, it’s courteous if you offer to pick it up for me. If you literally bump into me – or vice-versa – it is courteous to say “excuse me.” If I have some food-stuffs on my face, it might be considered courteous to point that out so that I might have an opportunity to remove it thus avoiding further embarrassment – unless of course, there is some strategy benefiting your client to my keeping it there….such as with my most recent visit to the Boston Municipal Court where I apparently spent the entire morning with my fly down and not one of my colleagues said a word (again, how many lawyer blogs will you find such an honest admission?).
Professional courtesy is not measured with an expectation that a colleague will merely ignore his professional obligations since someone else from “the club” is asking them too. That’s not being courteous. That’s being a hack. Which is a nice way of saying it is being a very bad lawyer.