When a lawyer who took on a contingent-fee client leaves the firm, who must keep representing the client and advancing the litigation costs?

Plain-English summary

Bar Counsel asked what responsibilities a lawyer keeps to clients who were represented by an attorney the lawyer had employed, after that employment ends. The hypothetical: an associate, while practicing alone, took on a client in litigation under a contingent fee agreement; the associate then joined a lawyer's firm, and representation continued under a replacement contingent fee agreement (presumably between the client and the lawyer) requiring the contracting attorney to advance litigation costs. The lawyer advanced substantial costs. After the associate's employment terminated, the lawyer refused to continue representing the client or to advance further costs; neither the associate nor the client could afford the costs.

The Commission said it could not give a complete answer, because the facts required both interpreting Bar Rule 3 (within its authority) and construing a contract (not within its authority). It explained that Bar Rule 3 generally imposes its requirements on individual attorneys based on the existence of a lawyer-client relationship, and that the rules do not define who the client's lawyer is; that turns on the parties' agreement, such as an engagement letter or contingent fee agreement. On the facts, the Commission concluded the client was at least a client of the associate before the replacement agreement, so the associate could not withdraw without complying with Maine Bar Rules 3.5(a) and (c), and it assumed the replacement agreement created an attorney-client relationship between the client and the lawyer.

From that, the Commission concluded that if the lawyer assumed responsibility for the client's cause through the replacement agreement, the lawyer was not free to withdraw without complying with Rules 3.5(a) and (c); and if the lawyer undertook the obligation to advance litigation costs, nothing in the Maine Bar Rules let that obligation be defeated or transferred to the associate solely because the associate's employment ended. It expressly limited this conclusion to the Bar Rules and declined to opine on the parties' rights under the law of contracts, both because it had not seen the agreement and because contract questions are outside the Commission's authority.

Currency note

This opinion was issued in 1999, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer drop a contingent-fee client and stop advancing costs because the associate who brought the case left?

A: The opinion concluded not under the Bar Rules. If the lawyer assumed responsibility for the case, the lawyer could not withdraw without complying with Rules 3.5(a) and (c), and a cost-advance obligation was not shifted to the departing associate by the employment ending.

Q: Did the Commission decide the contract dispute between the lawyer and the associate?

A: No. The Commission limited its conclusion to the Maine Bar Rules and declined to opine on the parties' rights under contract law, noting it had not been given the agreement and that contract questions are outside its authority.

Q: Who counts as the client's lawyer when representation passes between attorneys?

A: The opinion concluded that, for most purposes, the Bar Rules do not define this; the attorney-client relationship arises by the parties' agreement, so the engagement letter or contingent fee agreement must be consulted to identify the responsible lawyer.

Background and rules framework

The opinion interprets Maine Bar Rule 3.5 (withdrawal), specifically Rules 3.5(a) and (c), and discusses Rule 3.4(d)(1) provisions addressing lawyers who change firms and the firms they leave and join, in the setting of a contingent fee agreement. These correspond to ABA Model Rule 1.16 (declining or terminating representation) and Model Rule 1.5 (fees, including contingent fees). The Commission emphasized that Bar Rule 3 keys its duties to the lawyer-client relationship and is ultimately enforced against individual attorneys.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 (declining or terminating representation)
• Model Rule 1.5 (fees; contingent fees)
• Maine Bar Rule 3.5(a), 3.5(c); Rule 3.13; Rule 3.4(d)(1)(ii)-(iii); Rule 3.4(b)-(d); Rule 3.6(a), (h)

See also

• ABA Formal Op. 99-414: Ethical Obligations When Changing Firms
• ABA Formal Op. 489: Notice When Lawyers Change Firms

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89540

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: September 9, 1999

Bar Counsel's Question

Bar Counsel has asked the Commission to explore the responsibilities a Lawyer inherits or retains to clients who were represented by an attorney employed by the Lawyer after the employment relationship has ended. Bar Counsel suggests the following example as a basis for the discussion.

Bar Counsel's Hypothetical Case

Associate, while in practice alone, undertook to represent Client in litigation pursuant to a contingent fee agreement. Thereafter Associate became employed by Lawyer. Representation of Client continued under the terms of a replacement contingent fee agreement, presumably between Client and Lawyer, which required that litigation costs be advanced by the contracting attorney. Litigation costs have been advanced by Lawyer; they have been substantial, and the end is not yet in sight. Before the case went to trial, Associate's employment by Lawyer terminated. Lawyer refuses to represent Client in the litigation and refuses to advance any additional costs. Associate would be prepared to continue representing Client, but neither Associate nor Client can afford to advance the costs. Does Bar Counsel's hypothetical disclose violation of the Bar Rules by Lawyer or Associate or both?

Opinion

For the reasons that follow the Commission is unable to provide a complete answer to the question. The facts as presented require both the interpretation of Bar Rule 3, which is within the Commission's assigned responsibility, and construction of a contract, which is not. Bar Rule 3 generally imposes its restrictions and requirements on individual attorneys. Even those rules that mention law firms, such as Rule 3.13, and Rules 3.4(d)(1)(ii) and (iii), and Rules that appear to restrict law firms as such, e.g. Rules 3.4(d)(1)(ii) and (iii), must in the end be enforced against individual attorneys, since the ultimate sanction is a temporary or permanent loss of the right to practice law.[1] For most purposes Bar Rule 3 bases its requirements and prohibitions on the existence of a lawyer-client relationship between an individual attorney and a client.[2] The rule on withdrawal, Bar Rule 3.5, refers to withdrawal by a "lawyer" and to steps the "lawyer" must take to protect affected clients.

The Bar Rules do not in so many words provide criteria to determine who is a client or who the client's lawyer is, although particular rules, such as MBR 3.4(b) - (d) and MBR 3.6(a) and (h), may impose some of the obligations of a lawyer-client relationship despite the decision of a lawyer or client not to undertake representation. These extensions rest on finding that a prospective client reasonably believed disclosures to a lawyer would be held in confidence or in some cases that the lawyer had accepted a case. For most other purposes an attorney-client relationship arises by agreement of the parties, and the agreement of the parties must be consulted to identify the lawyer or lawyers. This may take the form of an engagement letter or, as in Bar Counsel's hypothetical, a contingent fee agreement.

Bar Counsel's hypothetical requires us to conclude that Client was at least a client of Associate prior to execution of the replacement contingent fee agreement and that Associate could not withdraw from representation without complying with Maine Bar Rules 3.5(a) and (c). The replacement contingent fee agreement may have substituted Lawyer for Associate as the attorney primarily responsible for Client's case, or it may have been silent. We assume that at least it created an attorney-client relationship between Client and Lawyer. The question of Associate's compliance with MBR 3.5(a) and (c) apparently has not yet arisen, since Associate continued active representation of Client and does not wish to withdraw. Rather, Associate does not acknowledge, and is not able to perform, an agreement to advance the costs of litigation, an issue we address below.

If by becoming a party to the replacement contingent fee agreement, Lawyer assumed some responsibility for Client's cause, even if shared with Associate, Lawyer is not at liberty to withdraw without compliance with Maine Bar Rules 3.5(a) and (c). If Lawyer undertook the further obligation to advance costs of litigation in that agreement, the Maine Bar Rules do not suggest any basis upon which that obligation could be defeated or transferred to Associate solely because Associate's employment has terminated. This conclusion is limited to the Maine Bar Rules. We neither express, nor intend to suggest, an opinion on the rights of the parties to the contingent fee agreement under the law of contracts, both because we have not been given access to the agreement and because such opinions are not within the authority of this Commission.

Footnotes

[1] Presumably the Supreme Judicial Court could reprimand a law firm without imposing discipline on individual attorneys, but the Bar Rules do not expressly contemplate such a sanction.

[2] Bar Rules 3.4(d)(1)(ii) and (iii) refer to clients of a "firm" and representation by a "firm" in defining restrictions applicable to lawyers who change firms and to the firms they leave and join.