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The Gavel

 Diverse Viewpoints in the Law
 March 2013
 Volume 5



Noel Yumo  

Ethical and practical considerations to ending relationships with clients.

Attorneys have duties to both their current clients and their former clients.  Under RPC 1.7 current clients have a broad right to “veto” any proposed representation adverse to them for any reason or no stated reason at all.  Under RPC 1.9, former clients have a more limited “veto” power because our fiduciary duties focuses on the specific matter handled prior and the information gathered during that representation.
Determining whether the client is a “current” or “former” client.
Under Hipple v. McFadden, 161 Wn.App. 550, 559, 255 P.3d 730 (2011) the test to determine whether the relationship has ended is similar to the one defining the beginning of an attorney client relationship.
If the client can credibly claim to have a subjective belief that the attorney still represents them, then the relationship is probably continuing.  In contrast, if counsel sends the client a letter closing the file, it will be difficult for such a credible subjective belief of a continuing relationship to be found. 
Consequences of failing to properly end the relationship with a client.
  • 1.  Exposes lawyers and their firms to civil and regulatory risk when taking on new matters adverse to people or entities that you or your firm have represented.  

  • 2.  Creates lingering ongoing duties on both the client and the attorney. Lingering duties which may toll any statute of limitations, claims for malpractice.
NOTE:  The statute of limitations for legal malpractice is generally three years ---tempered by both a discovery rule and a “continuous representation” rule.  The continuous representation rule tolls the statute of limitation period as long as the lawyer or firm continues to represent the client on the matter involved.  See Cawdrey v. Hanswon Baker Ludlow Drumheller, P.S. 129 Wn.App. 810, 819, 120 P.3d 605 (2005). 
Practical Solution:
A practical solution is to have a simple letter or email entitled, “file closing”, sent to the client upon completion of the matter.  The letter needs to be sufficiently definite in stating that the agreed work is complete and done.  See Qwest Corp. v. Anovian Inc.  No. C08-1715RSM, 2010 WL 1440765 at *5 -*6 (W.D. Wash. April. 8, 2010).  This will clearly delineate the end of representation.
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