Client choice in selecting and retaining attorneys is at the heart of the legal profession. Therefore, an attorney can usually be fired or hired for any reason or no reason, often at almost any time. Notably, there are some limits on clients’ ability to fire his or her attorney, especially on the eve of a trial, particularly if it would result in a delay that prejudices the other party.
A client can terminate the attorney’s work, even in the midst of certain projects. For example, if an attorney is in the middle of preparing a contract, the client can end the relationship with that attorney before the contract is finished.
Attorneys are always entitled to be paid for the work performed, even if they are fired before the work is finished. After the attorney’s employment is ended under any circumstances, the attorney may keep a copy of the client’s file. However, the attorney cannot bill the client for the time or expense in making copies of that file.
Notably, someone who probates an estate can hire any attorney, even if the selected attorney did not draft the deceased person’s will. Similarly, trustees of a trust can hire any attorney to assist them, even if the attorney hired is not the one who prepared the trust itself. There can be value in hiring the attorney who prepared the initial documents, but there may also be value in not hiring that attorney. The executors’ or trustees’ confidence in their attorney can be more important than an attorney’s personal familiarity with a particular matter.
Sometimes, attorneys will try to write wills and trusts that specify that the attorneys drafting the wills or trusts will be the attorneys who must advise the eventual executors or trustees. Provisions like these can unquestionably be superseded by executors or trustees who want to hire a different attorney.
Similarly, some attorneys who prepare real estate purchase agreements for sellers will include a self-serving provision in the agreement indicating that the seller’s attorney will conduct the closing. Particularly if the purchase contract is for a single-family house, trailer or condominium, including that term in the purchase contract is absolutely inconsistent with federal law that allows the buyer to select the real estate closing agent.
The principle that the client can select, hire and fire his or her attorney is so important in Ohio that it has some unanticipated implications. For example, attorneys cannot “donate” legal services as an item to be auctioned at charity fundraisers. This is because a client in this context might feel pressured to use the attorney whose services the client bid on, even if the client has reservations otherwise.
I have helped clients who hired another attorney the next time. Similarly, I have represented people who moved their existing work from another attorney to me. Some attorneys can have their feelings hurt, but we are all professionals who recognize that the client has the ultimate right to start, maintain or end each attorney-client relationship.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-523-5523. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.