After a client fires me and hires new counsel, can I call the client directly to protect my fee or win the case back?

Plain-English summary

A client discharged Lawyer A, hired Lawyer B, and signed a document directing A to stop work and turn over the files; B delivered the document and asked A for a time-and-expense breakdown, promising to protect A's fees from any recovery. A filed a notice of attorney's lien, then, without B's authority, telephoned the client and said he had never lost a case (untrue), could get the client more money than B, and that B would have little incentive to work the case once A's lien was paid. The questions were whether A's contact and statements violated the rules and, if so, whether B was required to report A to the Attorney Registration and Disciplinary Commission.

The opinion concluded that once a discharged lawyer has complied with Rule 1.16 (and any required withdrawal order is entered), the attorney-client relationship is terminated. It declined to treat every post-discharge contact as per se improper, but concluded that this call, motivated by protecting the fee claim or resuming the representation, violated several rules. Because A was pursuing his own interests against a person represented by B, the contact implicated Rule 4.2 (communication with a represented party). The "never lost a case" statement was false under Rule 7.1(a); the promise of more money created an unjustified expectation of results under Rule 7.1(b); and the comparison of A's services to B's, unless factually substantiated, violated Rule 7.1(c).

The opinion also addressed solicitation: although Rule 7.3(a)(1) lets a lawyer contact a prospective client with whom there was a prior professional relationship, that allowance is subject to Rule 7.3(b), under which a lawyer may "in no event" solicit a person the lawyer knows does not wish to be contacted; given the client's complete severance and transfer of the matter to new counsel, the opinion concluded it was fair to assume the client did not want to hear from A. On the reporting question, the opinion concluded that statements known to the successor lawyer only through a privileged communication are not subject to mandatory reporting under Rule 8.3.

Currency note

This opinion was issued in 1997, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rules 1.16, 4.2, 7.1, 7.3, 8.3, and 8.4), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a discharged lawyer call the former client directly about the case?

A: The opinion declined to call every post-discharge contact per se improper, but concluded that a call aimed at protecting the lawyer's fee claim or recapturing the case violated the rules, including Rule 4.2 where the client is now represented by new counsel.

Q: Which statements crossed the line under the advertising rule?

A: The opinion concluded that the false "never lost a case" claim violated Rule 7.1(a), the promise of a larger recovery created an unjustified expectation under Rule 7.1(b), and the unsubstantiated comparison to the new lawyer violated Rule 7.1(c).

Q: Did the solicitation rule bar the contact?

A: The opinion concluded that, although Rule 7.3(a)(1) allows contact with a former client, Rule 7.3(b) forbids soliciting a person the lawyer knows does not want contact, and the client's complete severance made it fair to assume he did not want to hear from the discharged lawyer.

Q: Did the new lawyer have to report the discharged lawyer?

A: Not on these facts. The opinion concluded that knowledge of the misconduct obtained through a privileged communication is not subject to mandatory reporting under Rule 8.3.

Background and rules framework

The opinion interpreted Rule 1.16 (declining or terminating representation; Model Rule 1.16), Rule 4.2 (communication with a represented person; Model Rule 4.2), Rule 7.1 (false or misleading communications; Model Rule 7.1), Rule 7.3 (direct contact and solicitation of prospective clients; Model Rule 7.3), and the reporting rule, Rule 8.3 (Model Rule 8.3), together with Rule 8.4.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 (declining or terminating representation) / Illinois Rule 1.16
• Model Rule 4.2 (communication with a represented person) / Illinois Rule 4.2
• Model Rule 7.1 (false or misleading communications) / Illinois Rule 7.1
• Model Rule 7.3 (solicitation of clients) / Illinois Rule 7.3
• Model Rule 8.3 (reporting professional misconduct) / Illinois Rule 8.3
• Illinois Rule 8.4 (misconduct)

Other opinions cited:

• ISBA Advisory Opinions Nos. 94-18, 91-23, 91-07

See also

• ISBA Ethics Op. 18-03: Communicating With a Represented Prospective Client
• ISBA Ethics Op. 23-04: Pro Se Lawyer Contacting a Represented Opposing Party
• ISBA Ethics Op. 11-01: Reporting Misconduct While Serving as Arbitrator or Mediator
• RI EAP Op. 2002-04: Rule 4.2 Bars Contacting a Discharged Client About the Discharge or File Transfer

Source

• Landing page: https://www.isba.org/ethics/opinions/9609