FEATURE ARTICLE: The Indifferent Client
Author: Professor Michael H. Hoeflich, PhD, Editor-in-Chief
Legal Editor: Carrie E. Parker
This article is featured in Volume 6, Number 5 of the Legal Ethics and Malpractice Reporter, published May 30, 2025.
A lawyer serves as a fiduciary agent for her client. This relationship is not one of equality. The vast majority of the obligations and responsibilities rest with the lawyer. The one-sidedness of the relationship is obvious in many of the rules and comments in the Rules of Professional Conduct. For instance, a client may dismiss a lawyer at any time for any reason and may do so without any need for justification. A lawyer, on the other hand, may not freely withdraw, but instead, must ensure that a withdrawal complies with the often-restrictive requirements of Rule 1.16. Pursuant to Rule 1.2 (a) (the so-called “means and ends rule”), a client has absolute decision-making power over critical decisions which go to the essence of the lawyer-client relationship such as settlement or pleas. Rule 1.3 requires candor to the client but not vice versa. Similarly, Rule 1.4 requires a lawyer to communicate with the client, but does not require the same of the client. Indeed, the Rules of Professional Conduct are very clearly written for the protection of clients, not of lawyers.
Over the past few months, we have discussed various types of clients and the ethical and practical problems they may present for a lawyer. Occasionally, a lawyer finds that a client takes a laissez faire attitude to a representation for some reason. They may not realize that a lawyer-client relationship is a partnership of sorts that requires both lawyer and client to work towards a common end. Others believe that as long as they pay their bills, they need not do anything else. It may be denial, or it may be simple lack of interest. Whatever it is, these attitudes may impede a lawyer’s efforts. The pro-client, one-sidedness of the Rules can make dealing with a client who takes a casual or indifferent attitude to the representation particularly challenging. How can a lawyer best protect herself in such a situation?
There are scenarios when withdrawal from the representation may be necessary or appropriate.
A lawyer’s first duty under the Rules of Professional Responsibility is competence. KRPC Rule 1.1:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Nowhere in Rule 1.1 nor the comments state that the duty of competence is suspended when a client is not helpful. When the client’s indifference and failure to support the case reaches the extreme situation that the lawyer cannot continue to represent him competently then KRPC mandates that the lawyer must terminate the representation. KRPC 1.16(a)(1) states that:
a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law…
The only exception to this mandatory termination rule is if a court orders the lawyer to continue the representation. It is certainly conceivable that a client’s uncooperative behavior could make competent representation difficult or impossible. A lawyer might, for instance, need documents only available from the client or only available with the client’s approval. Without these, a lawyer might be unable to meet discovery or court-ordered submission deadlines. In such an unpleasant situation, a lawyer might well believe that competent representation had become impossible and judge that she must withdraw pursuant to Rule 1.16 (a)(1).
It is also possible that a client’s refusal to cooperate with his lawyer does not reach the extreme requiring a Rule 1.16(a)(1) withdrawal but might still permit the lawyer to withdraw pursuant to Rule 1.16(b). KRPC Rule 1.16(b) reads:
…a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(1) the client has used the lawyer’s services to perpetrate a crime or fraud;
(2) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
(3) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(4) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(5) other good cause for withdrawal exists.
Although KRPC 1.16(b)(1) and 1.16(b)(2) would probably not provide assistance to a lawyer with an uncooperative client, Rules 1.16(b)(3) and (4) may well do so in many situations.
The difficulty with going the Rule 1.16 withdrawal route, however, is that it requires admission of a lawyer’s defeat by a recalcitrant client and, of course, means that the lawyer loses the representation. While a lawyer might well decide that there is no choice in the situation, forethought and action at the beginning the lawyer-client relationship might avoid this unfortunate result.
The lawyer-client relationship is a contractual relationship. By having a thoughtfully drafted engagement letter to establish the mutual rights and obligations of a representation, a lawyer can minimize situations where the client’s indifference makes it difficult to continue the representation. Rather than focusing exclusively on the client’s obligations to pay their fees, an engagement letter can and should include the client’s obligation to provide requested documents and information to the lawyer in a timely manner and to cooperate with the lawyer in any matters that require client input. The engagement letter can also specify that failure to do so may result in termination of the representation.
Uncooperative clients are an unfortunate reality. The Rules of Professional Conduct provide some assistance in extreme cases, but lawyers should be prepared for the possibility of having an uncooperative or indifferent client and do what they can to inform all clients of their expectations in the lawyer-client relationship and create mutual obligations as appropriate.
READ THE FULL ISSUE OF LEMR, Vol. 6, No. 5
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