One of the most famous quotations in movie history is from Cool Hand Luke where the brutal prison warden says to the Paul Newman character, Luke, “What we have here is a failure to communicate.” Actually I believe what it might have been is, “What we got here is a failure to communicate.” Whether it was “have” or “got,” the point is that communication is key. Certainly in the attorney-client relationship, communication is of paramount importance.
I recently checked some of the case law pertaining to attorneys withdrawing from the legal representation of a client. Don’t misunderstand me. I want to represent clients and I seek strong, good cases. But what of a situation when the attorney feels that there has not been cooperation? Say the lack of cooperation has been so extreme that the attorney has to file a Motion to Withdraw? That can happen, although happily, it hasn’t really happened to me in 35 years, at least until very recently.
I will simply say that a failure to communicate should never be caused by the lawyer. The client is entitled to a non-neglectful and communicative lawyer. Likewise that applies to the lawyer’s team. I would expect that any attorney who represents you in any matter would be free and open to full communication. As we know, there are many opportunities these days in the modern world of email etc. Not that many years ago, there was an office phone and snail mail. It’s almost easy to forget how far and how fast the communications world has come. Nowadays, how can an attorney not keep you apprised of what is going on in your case, given the many modes of communication at our disposal?
Obviously, breakdowns in the lawyer-client relationship occur. I go to numerous legal education seminars. When the seminar topic is on lawyer discipline, the speakers from the Bar Counsel’s office of the Board of Bar Overseers cite a failure to communicate as the number one source of complaints against lawyers. The lawyer, the clients report, doesn’t call back.
Please note that communication goes both ways. In those (fortunately) rare instances when my office has not heard from a client, it is very hard for us to present the case. Imagine a doctor trying to make a diagnosis for a proper medical care only to have the client fail to get a blood test or some other diagnostic test that is fundamental to the treatment plan. Imagine if that failure goes on repeatedly. That can happen with lawyers and clients, and must be avoided if the case is to be presented in the best way possible.
The remedy for those unhappy and frustrating situations is to keep lines of communication open between the client and attorney. Hopefully, the promised document, if that’s the holdup, will appear. But, frankly, I can’t say in every case that it does. Where it doesn’t, and again this has almost never happened, there are remedies for the lawyer to Move to Withdraw. It is always better if there is successor counsel available and is simultaneously filing an appearance. Please know that if this were to occur to me, I would want to sit down with the client, if at all feasible, to avoid that eventuality. Where it isn’t feasible is if the client has moved hundreds of miles away. Then, the hoped-for face to face encounter is not likely to occur.
Another time that a withdrawal needs to be contemplated is if it seems that the client is engaging in inappropriate conduct. Certainly, if that conduct concerned the very facts of the case at issue, that would be enough to withdraw or not to take the case in the first place, assuming it were known to the attorney. That would not be a close call and removal is the only acceptable response by the lawyer. This blog addresses a more fuzzy issue -that of lack of cooperation- which doesn’t involve ethics but instead involves effective representation.
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