When a client picks up its files from a lawyer, does that count as discharging the lawyer so that new counsel can take over?

Plain-English summary

The Committee addressed a firm that had a contract to perform collection work for a definite term. Near the end of the term, the client asked for the return of its files and picked them up, then asked for a final accounting and the return of proprietary materials. The contract had no provision for fees or services after termination. The firm asked whether the request for return of files was a notice of discharge so that new counsel could begin, and whether former counsel could continue depositing debtor payments after the term and claim a contingency fee under the contract.

On the first question, the opinion concluded the answer was yes. It reasoned that a request for the return of a file cannot be considered anything but a discharge, that a client has the right to discharge a lawyer at any time with or without cause (subject to liability for the lawyer's services), and that ethically the new lawyer should not accept the client until the client has notified the discharged lawyer, citing Rule 1.16(d) and its comments and Ethics Opinion No. 144.

On the second question, the opinion concluded that whether former counsel could continue collecting and claim a contingency fee after the term involved a legal, not an ethical, problem, and so could not be addressed by the Committee.

Currency note

This opinion was issued in 1993, interpreting the Mississippi Rules of Professional Conduct (adopted effective June 22, 1994, and amended February 5, 1999). Mississippi did not adopt the ABA's 2002 Ethics 2000 revisions wholesale, but 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 Treat this page as historical context, not current guidance.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: Does asking for your files back fire your lawyer?

A: The opinion concluded yes; a client's request for the return of its files cannot be considered anything but a discharge, and a client may discharge a lawyer at any time with or without cause.

Q: When can the new lawyer start?

A: Per the opinion, new counsel should not accept the client until the client has notified the discharged lawyer, described in the source as the "substituted lawyer," of the discharge.

Q: Can the former lawyer keep collecting and claim a contingency fee after the contract ends?

A: The opinion concluded that question was legal, not ethical, so the Committee would not address it.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.16(d) (duties on termination of representation), which corresponds to Model Rule 1.16, together with Ethics Opinion No. 144 (adopted March 11, 1988).

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.16(d) (duties on termination of representation) (cf. Model Rule 1.16)

Other opinions cited:

• Mississippi Ethics Opinion No. 144 (adopted March 11, 1988).

See also

• MS Bar Ethics Op. 219: Refunding Unearned Fees

Source

• Landing page: https://web.archive.org/web/20210501093342/https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/208/
• Original PDF: https://web.archive.org/web/20210512102527/https://www.msbar.org/media/1459/35a_et_op_208.pdf
• Note: The Mississippi Bar no longer hosts its ethics opinions on a public page; it now provides them to members through vLex Fastcase (Bar ethics opinions page). The links above are Internet Archive copies of the Bar's own pages.

Original opinion text

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

ETHICS OPINION NO. 208

OF THE MISSISSIPPI BAR

RENDERED May 28, 1993

TERMINATION OF EMPLOYMENT- A request by client for return of files constitutes a notice of discharge such that new counsel can begin representation.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following hypothetical:

Firm had a contract to perform collection work for a definite term. Near the end of the term, client requested return of its files. The files were picked up by client. Subsequently, client asked for a final accounting and a return of proprietary materials provided for the collection project. The contract has no provision for fees or services after its termination.

The specific issues regarding ethical conduct asked to be addressed by the Committee are:

1. Does the request for return of files constitute a notice of discharge such that new counsel can begin representation under E.O. No. 144?

2. Can the former counsel continue to deposit payments from debtors after the term of the contract and claim a contingency fee under the terms of the contract?

The response to the first inquiry is yes. It is clear that the new counsel should be free to begin representation since the request for return of a file cannot be considered anything but a discharge. A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment of the lawyer's services. Ethically, the new lawyer should not accept a client until the client has notified the substituted lawyer of his discharge. See MRPC 1.16(d) and comments thereto; EO No. 144, MSB adopted March 11, 1988.

With regard to the second inquiry, the Committee is of the opinion that this question involves a legal, not an ethical problem, and, therefore, cannot be addressed by the Committee.