By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson
It is a common enough occurrence that a client stops paying lawyer fees and stops communicating with the lawyer or otherwise stops cooperating. When such things happen, lawyers sometimes want to stop working on the client's matter since it appears unlikely that the lawyer will be paid for any further services rendered to the client.
What is the appropriate response under the Rules of Professional Conduct? That issue was addressed by the Supreme Court in In re Smith, 168 Ill. 2d 269, 283-84, 659 N.E.2d 896 (1995). The attorney was accused of failing to act with reasonable diligence in handling the cases of three clients. The attorney claimed that he devoted time to those cases and took steps to move them toward conclusions favorable to his clients. He contended that his efforts were thwarted, in part, by uncooperative clients.
The Supreme Court disagreed with the attorney and found that the testimony of the clients demonstrated a pattern of neglect by the attorney. The court noted that the attorney's files reflected long periods of inactivity, ranging from eight to 14 months, in each of these cases. The court concluded that, even if the clients ultimately received the legal services for which they had retained the attorney, the long delays by the attorney caused the clients considerable and needless anxiety.
The court found that the attorney violated Rule 1.3, which directs lawyers to "act with reasonable diligence and promptness in representing" their clients and Rule 3.2, which directs lawyers to "make reasonable efforts to expedite litigation consistent with the interests of the client."
Lawyers are not permitted to allow a client's claim to lapse simply because the client has not paid the lawyer a fee or has refused to pay the fee of an expert witness. In In re Moll , 04 CH 131, M.R. 22061 (Jan. 23, 2008), an attorney failed to file a case before the statute of limitations expired because the expert witness that had been retained turned out to be too expensive. The hearing board wrote that even if it was a reasonable decision not to hire the expert because of his fees, the attorney had a responsibility to retain another expert and file the claim within the statute of limitations and then obtain an extension within which to obtain an expert pursuant to 735 ILCS 5/2-622 or withdraw from the case and give the client an opportunity to consult with another attorney before the statute of limitations expires. The board emphasized that lawyers have a professional duty to either move forward with client matters or withdraw and give the clients an opportunity to consult with other counsel.
In In re Carlson, 93 CH 643, M.R. 11984 (1996), the attorney agreed to represent two clients in litigation, but failed to take the actions necessary to maintain the viability of the cases, did not advise the clients as to the status of their matters and failed to withdraw from representation when problems arose. The attorney's argument that he was retained only to file the complaint was rejected. It was noted that he was the attorney-of-record in the case and did not seek to withdraw.
Also rejected was the argument that the attorney did not have to diligently handle the cases because he was concerned about the client's ability to pay his fee due to her check being dishonored or concerned that the case lacked merit. The boards determined that if a client fails to pay or meet an obligation to the attorney, the attorney cannot remain idle. Instead, the attorney must communicate the problem to the client and withdraw if the problem is not remedied or resolved. The review board held that, regardless of the merits of the case, an attorney who has undertaken to represent a client cannot simply let the client's matter languish, even if the client does not meet his or her payment responsibilities.
Regarding the attorney's opinion that the client did not have a meritorious claim, the boards considered that the attorney should have either advised the client of his opinion and declined to file suit far enough in advance of the running of the limitations period to permit her to seek a second opinion or proceed pro se or filed the case to preserve the client's rights and withdrawn after proper notice to the client. When a lawyer undertakes to represent a client, a lawyer is obliged to represent them until he properly withdraws.
The boards also addressed the issue of a client who is supposed to pay the costs of the suit, including the filing fees, and stated that if a client is required to advance costs, the attorney has an obligation to clearly and unequivocally inform the client of this obligation, give this notice at a time when the client could explore other options and withdraw if the client still fails to comply.
In another case, the court instructed that an attorney "is required to provide a client with information so the client can make intelligent decisions about the case, either to proceed further, terminate pursuit of the matter or exercise some other option, such as seeking advice from other counsel." In re Ring, 141 Ill. 2d 128, 140, 565 N.E.2d 983 (1990).
The common thread is that the attorney should communicate with the client, in a way the client can understand, what the attorney will do as well as what the client is obligated to do and the consequences of any failure by the client to meet her obligations.