Breaking Up Is Hard to Do: Terminating the Attorney/Client Relationship
LACBA Update, January 2007

By Ellen A. Pansky, member, LACBA Professional Responsibility & Ethics Committee. Pansky is a legal ethics expert practicing at Pansky & Markle in South Pasadena. The opinions expressed are her own.

In the recent romantic comedy “The Break-Up,” a couple played by actors Vince Vaughn and Jennifer Aniston continues to live together after apparently breaking off their relationship. The woman reveals near the end of the film that, contrary to all appearances, she did not actually intend to end the relationship. The movie brings home the point that human relationships can be ambiguous and unclear, and perceptions can differ. The same is true in attorney-client relationships.

It has been generally recognized that, where no court or administrative tribunal retains jurisdiction over a matter and nothing remains to be done in the matter in which legal representation was previously provided, the duty of the lawyer to the client terminates. No formal notice or motion of withdrawal is required to establish the termination. See Panattoni v. Superior Court (1988) 203 Cal. App.3d 1092. In Rubinstein v. Barnes (1987) 195 Cal. App.3d 276, the court held that an attorney did not “continue to represent” a client in a dissolution of marriage action by virtue of his failure to formally withdraw as counsel despite the fact that the trial court retained jurisdiction over spousal support.

Similarly, Shapero v. Fliegel (1987) 191 Cal. App.3d 842 held that an attorney’s failure to formally withdraw as counsel in a marital dissolution action by filing and serving a notice of withdrawal, as provided by Code of Civil Procedure Section 285.1, did not necessarily compel the conclusion that the representation was continuing. Shapero held that “such failure, standing alone, does not satisfy the continued representation provision of section 340.6 for the purpose of tolling the running of the statute of limitations.” Rather, it is the totality of circumstances that determines when the representation has been completed.

As stated in Mallen and Smith, 1 Legal Malpractice Section 8.2 (2005 ed.), the termination of the attorney-client relationship may be implied from the parties’ conduct, and the relationship and its correlative duties end when the attorney completes the representation. Furthermore, “[a]lthough the particular task may be concluded, the relationship impliedly may continue by the lawyer performing related services.” Id. at 924.

As in the formation of the attorney/client relationship, the continuance of the professional relationship is not based on the purely subjective view of the client. The client’s subjective belief that an attorney/client relationship has either come into existence and/or is continuing is tempered by an objective, reasonable person standard. As was held in Worthington v. Rusconi (1994) 29 Cal. App. 4th 1488, 1498: “Continuity of representation ultimately depends, not on the client’s subjective beliefs, but rather on evidence of an ongoing mutual relationship and of activities in furtherance of the relationship.” (See also Restatement of the Law Governing Lawyers Section 31, Comment (h), providing at page 223: “Because contracts with a client are to be construed from the client’s viewpoint, the client’s reasonable understanding of the scope of the representation controls.”)

The Restatement of the Law Governing Lawyers Section 33(1) also provides some guidance as to the attorney’s duties upon the termination of representation:

In terminating a representation, a lawyer must take steps to the extent reasonably practicable to protect the client’s interests, such as giving notice to the client of the termination, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee the lawyer has not earned. Id. at 239-240.

And Comment (b) to Section 33(1) of the Restatement provides:

What efforts are appropriate and practicable depends on the circumstances, including the subsisting relationship between client and lawyer. The lawyer must ordinarily advise the client of the implication of termination, assist in finding a new lawyer, and devote reasonable efforts to transferring responsibility for the matter.” Id. at 241.

The standard for determining when the attorney/client relationship has terminated was clarified in the recent holding in Gonzalez v. Kalu (2006) 140 Cal. App.4th 21 at 30-31:

Absent a statutory standard to determine when an attorney’s representation of a client regarding a specific subject matter ends, and consistent with the purposes of the continuing representation rule, we conclude that for purposes of Code of Civil Procedure section 340.6, subdivision (a)(2), in the event of an attorney’s unilateral withdrawal or abandonment of the client, the representation ends when the client actually has or reasonably should have no expectation that the attorney will provide further legal services. (See 1 Mallen & Smith, Legal Malpractice, supra, Theory of Liability—Common Law, §8.2, p. 948; Shumsky v. Eisenstein, supra, 726 N.Y.S.2d at pp. 370-371].) That may occur upon the attorney’s express notification to the client that the attorney will perform no further services, or, if the attorney remains silent, may be inferred from the circumstances. Absent actual notice to the client that the attorney will perform no further legal services or circumstances that reasonably should cause the client to so conclude, a client should be entitled to rely on an attorney to perform the agreed services and should not be required to interrupt the attorney-client relationship by filing a malpractice complaint. After a client has no reasonable expectation that the attorney will provide further legal services, however, the client is no longer hindered by a potential disruption of the attorney-client relationship and no longer relies on the attorney’s continuing representation, so the tolling should end. To this extent and for these reasons, we conclude that continuous representation should be viewed objectively from the client’s perspective. [Emphasis added.]

The Gonzales court went on to conclude:

In our view, the failure to notify a client of the attorney’s withdrawal from representation does not compel the conclusion that the representation continues ad infinitum, but is an important factor to consider in determining whether the client at a particular time reasonably believed that the representation was continuing.

The holding in Gonzales emphasized the importance of providing the client some sort of written notification that the representation in a particular matter has ended. The attorney who fails to do so acts at his or her peril. Where no writing exists, the attorney may find that, despite the fact that no legal services have been provided for a significant period, a jury will decide whether the client—a la Vince Vaughn preparing a romantic dinner for the ambiguously emotionally separated Jennifer Aniston—was reasonable in believing that the relationship was continuing. By sending a termination of representation letter, the client will have clarity, and the attorney will be safe.