Opinion #169. Responsibility of Attorney Leaving Firm for Contingent Fee Clients
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?
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. 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. 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.
 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.
 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.