Termination of the Attorney/Client Relationship
An issue that arises in legal malpractice cases frequently is whether the attorney client relationship had been properly terminated when a particular event occurred. There are two ways to terminate an attorney-client relationship: 1) as a matter of law; and 2) as a matter of fact.
Termination as a matter of law means that the occurrence of a certain event terminates the relationship, regardless of the parties’ intent or the observance of formalities.
As a Matter of Law
One event that usually terminates the relationship as a matter of law is the death of the client. Generally, the attorney may do nothing further on the client’s behalf unless and until authorized to do so by a properly appointed representative of the client’s estate. Bingham v. Zolt, 683 F.Supp. 965 (S.D.N.Y. 1988).
A second event that terminates the relationship as a matter of law is when the Court orders the attorney discharged as counsel. Stroud v. Ward, 169 Mich. App. 1, 425 N.W.2d 490 (Mich. App. 1988).
While not a universally held view, there is also case law indicating that filing a complaint with the State Bar against your attorney terminates the relationship as a matter of law. Brown v. Johnstone, 5 Ohio App. 3d 165, 450 N.E.2d 693 (Oh. App. 1982).
As a Matter of Fact
If one of the events that terminates the relationship as a matter of law has not occurred, then the question is whether, based upon the facts of the case, the finder of fact should find that the relationship has been terminated.
“(A) formal letter specifically indicating the representation has terminated” generally satisfies the requirements for termination. Busacca v. McGuire & Schneider LLP, 162 Ohio App. 3d 689, 834 N.E.2d 856 (Oh. App. 2005); see also, Martini v. Leland, 116 Misc.2d 231, 455 N.Y.S.2d 354 (N.Y. Civ. Ct. 1982).
If the letter states a contingency for termination and that contingency comes to pass, this also generally will be found to have terminated the relationship. In Roderick v. Ricks, 54 P.3d 1119 (Utah 2002), a lawyer sent a letter stating that if he did not get paid in two weeks, the relationship was terminated. Two weeks went by, he did not get paid and this was found sufficient to have terminated the relationship.
If one of the events that terminates the relationship as a matter of law has not occurred and the attorney leaves the resolution of the relationship in any way ambiguous or open to question, the Court will almost always refuse summary judgment on the issue of termination and send the question of whether the attorney has properly terminated the relationship to the jury. Wythe v. Harrell, 224 Or. App. 215, 197 P.3d 601 (Or. App. 2008); Jenifer v. Fleming Ingram & Floyd P.C., 552 F.Supp.2d 1370 (S.D.Ga. 2008).