March 29, 1994
A discharged lawyer has no ethical duty to advise a former client about disciplinary action taken against the former client's successor counsel, which the discharged lawyer suspects may have impacted successor counsel's recommendation of a small wrongful death settlement.
References: MRPC 1.0, 1.4, 1.16(a) and (d), 8.3.
A lawyer had been retained to represent a personal representative of an estate in a wrongful death suit against two defendants. After a policy settlement was negotiated with one defendant, the client declined to accept the settlement and discharged the lawyer. The lawyer asserted a lien for attorney fees earned against any proceeds forthcoming from resolution of the suit against the one defendant.
Eventually successor counsel presented a settlement agreement to the court for approval. The discharged lawyer believes that the case against the second defendant settled at an unreasonably low amount. The circuit court judge denied the discharged lawyer's request for permission to question the former client about whether the client knew about a grievance filed against successor counsel, which the discharged lawyer believes could have been a potentially motivating factor for the small settlement, and whether the client knew that almost no discovery had occurred in the year that successor counsel had handled the case.
The discharged lawyer now asks whether there is any ethical obligation to notify the former client of successor counsel's disciplinary situation or to forward a copy of the discipline order to the former client, so that the former client may be fully informed and can take whatever further action may be appropriate. Restated, the lawyer questions whether there is an ongoing duty to counsel a client about legal rights and remedies after the lawyer is discharged.
As with any other contract, a lawyer's contractual responsibilities to a client cease when the client discharges the lawyer (or in litigation matters, when the presiding adjudicator discharges counsel). "Once an attorney accepts a retainer to represent a client he is obliged to exert his best efforts wholeheartedly to advance the client's legitimate interests with fidelity and diligence until he is relieved of that obligation either by his client or the court." State Bar of Michigan v Daggs, 384 Mich 729 187 NW2d 227 (1971). Emphasis added. MRPC 1.16(a) is consistent with Daggs, stating:
"(a) Except as stated in paragraph (c), a lawyer shall not represent a client, or where, representation has commenced, shall withdraw from the representation of the client if . . . .
Certainly, termination from representation does not relieve the lawyer of certain continuing ethical obligations towards the former client. For instance, the lawyer has an ongoing duty to safekeep a former client's property under MRPC 1.15. A lawyer has a continuing duty of confidentiality under MRPC 1.6. Upon termination, the lawyer is bound to take reasonable steps to protect a client's interests such as giving reasonable notice to the client and surrendering papers and property to which the client is entitled. MRPC 1.16(d).
MRPC 1.16(d), however, does not impose upon a discharged lawyer an ongoing duty to counsel a former client about the advisability of a particular settlement reached after the lawyer's termination. In fact, MRPC 1.16(a) requires just the contrary, i.e., the lawyer shall not represent a former client after discharge. Moreover, there is no continuing duty to protect the former client from the consequences of ignorance or ill-advised conduct. To impose such a duty would make all lawyers unwitting fiduciaries of former clients to the lawyer's detriment and to the detriment of the lawyer's obligations to current clients.
The discharged lawyer has no ethical obligation to advise the former client about the status of disciplinary proceedings against the new lawyer, or to provide the former client with documents regarding the discipline proceedings. Since MRPC 1.4 contemplates communication during the term of the lawyer's representation of the client and not after discharge, the rule does not apply.
Although there is no ethical obligation to advise the former client, the lawyer would not be ethically prohibited from voluntarily contacting the former client to provide this information.
Whether the lawyer has an obligation to report the actions of the new lawyer to the Attorney Grievance Commission is a function of whether MRPC 8.3 was violated. The inquirer has provided no facts which enable the Committee to determine whether the duties under MRPC 8.3 have been triggered. We note, however, that the inquirer merely suspects but does not know, that the settlement was low because of successor counsel's disciplinary situation. Even if there is no obligation to report such actions, a lawyer may voluntarily contact the Attorney Grievance Commission, provided that such disclosure would not violate MRPC 1.6.