When a client fires a lawyer mid-case, must the old lawyer hand over the file, and can a new lawyer take over before the old lawyer is paid?

Plain-English summary

A client (Doe) had retained attorney Roe on a contingency contract. Before trial, Doe fired Roe and retained attorney Toe, who asked Roe for the file and a bill. Roe was willing to let Toe proceed but refused to deliver his office file to Doe or Toe until he was paid for services and expenses, and never moved to withdraw. Toe, learning of the refusal, declined to act for Doe until Roe released him. The Committee addressed several questions about these events.

The opinion answers that Toe could accept Doe as a client once Toe was satisfied Doe had fired Roe; Rule 4.2 (communication with a represented person) did not bar it because Roe had been terminated. Under Rule 1.16(a)(3), once discharged, Roe was required to withdraw, and no "release" by Roe was needed before Toe could take the case. Under Rule 1.16(d), on termination a lawyer must take reasonably practicable steps to protect the client's interests, including surrendering papers and property to which the client is entitled. The opinion concludes Roe had to deliver the office file to Doe or Toe even though he had not been paid, because Toe could not properly proceed without it, while Roe retained the right to be paid for services and expenses on a quantum meruit basis (citing Newman v. Melton Truck Lines, Inc.) and could pursue Doe for payment if not paid within a reasonable time.

In practice

Under this opinion, a discharged lawyer cannot hold the client's file hostage for a fee: the lawyer must surrender the file to the client or successor counsel and move to withdraw, following local court procedures. The new lawyer may accept the client once the discharge is confirmed, without a "release" from prior counsel. The opinion applies Rule 1.16(a)(3) (mandatory withdrawal on discharge) and Rule 1.16(d) (surrender of papers on termination), and recognizes the discharged lawyer's separate right to recover the reasonable value of services and expenses on a quantum meruit basis, even under a contingent contract.

Common questions

Q: Can my former lawyer refuse to hand over my file until I pay the bill?

A: No. The opinion holds the discharged lawyer must deliver the office file to the client or new counsel even before being paid, because the new lawyer cannot properly proceed without it.

Q: Does a new lawyer need the old lawyer's permission to take the case?

A: No. The opinion states that once the client discharged the prior lawyer, no release was needed; the new lawyer may accept the client once satisfied the discharge occurred.

Q: Does the fired lawyer still get paid if the original contract was contingent?

A: Yes. The opinion recognizes the discharged lawyer's right to payment for services and expenses on a quantum meruit basis, citing Newman v. Melton Truck Lines, Inc., even though the original contract was contingent.

Q: What must the discharged lawyer do after being fired?

A: Under Rule 1.16(d), take reasonably practicable steps to protect the client's interests, including surrendering the papers and property to which the client is entitled, and move to withdraw as attorney of record per local court rules.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.16 (declining or terminating representation; Model Rule 1.16), specifically Rule 1.16(a)(3) (mandatory withdrawal when discharged) and Rule 1.16(d) (steps to protect the client on termination, including surrender of papers and refund of unearned advances), and Rule 4.2 (communication with a represented person; Model Rule 4.2). It treats the discharged lawyer's quantum meruit fee right as separate from the ethical duty to surrender the file.

Citations and references

Rules of Professional Conduct:

• MR 1.16 / MS RPC 1.16(a)(3), 1.16(d) (mandatory withdrawal on discharge; surrender of papers and property)
• MR 4.2 / MS RPC 4.2 (communication with a represented person)

Cases:

• Newman v. Melton Truck Lines, Inc., 443 F.2d 897 (1971), cited for a discharged lawyer's quantum meruit recovery of services and expenses

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/49/
• Original PDF: https://www.msbar.org/media/1082/et_op_49-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 49

OF THE MISSISSIPPI BAR

RENDERED May 04, 1979

AMENDED April 06, 2013

TERMINATION OF REPRESENTATION - CLIENT FILES - CLIENT FUNDS - An attorney may accept employment by a client who previously employed another attorney on the case provided the client had terminated the prior attorney even if the prior attorney has not released the client. The terminated attorney should deliver his office file to the client or the client's new attorney and move to withdraw as the client's attorney of record once terminated, but is entitled to payment by the client for his services rendered and expenses incurred on behalf of the client on a quantum meruit basis.

The Ethics Committee of the Mississippi Bar has been requested to render an opinion concerning specific questions based on the following facts:

1) Doe retained attorney Roe on a contingency contract. Issues were joined and ready for trial but a continuance was requested and granted. Thereafter, attorney Toe wrote to attorney Roe and gave notice that he had been retained and requested delivery of Doe's file and a bill for services rendered. Subsequently, Doe wrote to attorney Roe, advised that he had been fired, that attorney Toe had been retained, and requested delivery of his files to attorney Toe along with a bill for services rendered. Attorney Roe was willing for attorney Toe to go ahead with representation of Doe, but attorney Roe refused to deliver his office file on Doe's case to either Doe or attorney Toe until he had been paid for services rendered and expenses incurred. Attorney Roe also insisted on a conference regarding his services and refused to send Doe a bill without such a conference. Attorney Roe was also willing to meet with attorney Toe to advise him fully about the case.

2) The office file held by attorney Roe on Doe's cases consisted of items that fell into three classifications: a) pleadings, depositions, instructions, etc., which had already been filed with the Clerk among the papers of the cause; b) evidentiary matters such as annual reports filed with the State Insurance Commission, fire reports, laboratory reports on the fire that burned Doe's home, letters to persons and parties, all of which Doe had access to or copies of; and c) copies of cases, statutes, portions of books, beefs, and other authorities which attorney Roe used in developing the case or would have used in support of Doe's position. Attorney Roe had developed, collected and procured all items in his office file at no cost to Doe, the expenses connected with same to be paid by Doe upon conclusion of the case. Doe had paid attorney Roe nothing when he fired him.

3) Roe never filed a motion to withdraw as Doe's attorney of record. When Roe refused to release his office file to Doe or attorney Toe, attorney Toe advised Doe that he would not and could not ethically represent Doe until he was released by attorney Roe. Doe had previously signed an employment agreement with attorney Toe, but Toe, upon learning of Roe's refusal to release, refused to act in any way as Doe's attorney.

The following specific questions are hereby addressed:

1) Are there any ethical restraints on attorney Toe's acceptance of Doe as a client once attorney Roe was fired?

Rule 4.2 of the Mississippi Rules of Professional Conduct (MRPC), provides that "a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized by law to do so."

Since attorney Roe was "fired" and thus terminated by the client, attorney Toe could accept Doe as a client once he was satisfied that Doe had terminated Roe as his attorney.

2) Are there any ethical requirements that attorney Roe release Doe as a client before attorney Toe can accept Doe as a client?

Rule 1.16(a)(3), MRPC, provides that a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer is discharged.

Once Roe was discharged by Doe, it was mandatory upon Roe to withdraw from his representation of Doe. No release by Roe of Doe was needed before Toe could accept Doe as a client once Toe was satisfied Roe had been discharged by Doe. Roe should follow the necessary procedures of the local court regarding withdrawal, including getting the permission of the court if required by the court rules.

4) Once Roe was fired, what course of action should Roe have taken regarding delivery of his office file, moving to withdraw as Doe's attorney of record, or advising Doe in writing that the attorney/client relationship had terminated?

Rule 1.16(d), MRPC, provides that:

Upon termination of representation, a lawyer shall takes steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

Roe had the obligation of delivering his office file to Doe or to Toe if so directed by Doe even after he was terminated. Roe also has the right to be paid for his services rendered and expenses incurred to date on a quantum meruit basis. This right to payment, even though his original contract with Doe was a contingent contract, is based on Toe's request for a delivery of Doe's file and a bill for services rendered. If Doe is eventually successful and recovers a judgment, Roe is also entitled to payment for his services rendered and expenses incurred on a quantum meruit theory as per the case of Newman v. Melton Truck Lines, Inc., 443 Fed.2d 897 (Miss. 1971). Because Toe could not proceed to represent Doe properly without Roe's file or without a great deal of duplication of time and expense, Roe has the professional duty to deliver the file without first being paid. Roe would have the right to proceed against Doe for payment for services and expenses on the quantum meruit theory if he were not paid in a reasonable time. If requested by Toe for a letter confirming his discharge by Doe, Roe should comply as a professional courtesy to Toe.