Opinion 90-25
(January 1991)

You have asked for an opinion on the following facts: You represented a client in a personal injury action on whose behalf you settled a personal injury claim against a third party carrier. You also have placed the client's own carrier on notice of an underinsured claim. Prior to negotiating the underinsured claim you were fired by your client. Repeated attempts by you, both in writing as well as by phone have been unsuccessful in transferring the file to new counsel. Two appointments that successor counsel had made with you to review the file, arrange a fee distribution between counsel and transfer the file were not kept by the successor attorney. You were fired six months ago, and have at least six months to go before any statute of limitations could possibly pass to the prejudice of your client. Finally you have recently discovered that the successor attorney has yet to contact the insurance companies involved with the case.

You have three questions:

1. In light of the fact that plaintiff's new counsel is ignoring the file what are your obligations to protect the statute of limitations;

2. Because you did receive a policy limits offer for the third party claim, are you entitled to a contingent fee as agreed between the client and your firm;

3. What should you do to accomplish the transferal of the file in light of new counsel's obstructive behavior so as to fully protect the plaintiff's interests without further prejudice.

Rule of Professional Conduct 1.16 governs withdrawal of an attorney from representation and provides, in part, as follows:

(a) ...a lawyer shall not represent a client, or where representation has commenced, shall withdraw from the representation of a client if:

(3) The lawyer is discharged.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned....

The Committee must decline to comment on your second question as this is a legal/contractual one outside the scope of the Committee's charge which is strictly limited to commenting on the ethical impact of proposed conduct.

The Committee's response to your first and third questions is combined. It is clear from Rule 1.16(a), that you must terminate representation of your client as you have been fired. It is the Committee's opinion that you will be in compliance with the ethical requirements of Rule 1.16(d) if you contact your client and his new attorney, certified mail, return receipt requested advising them and confirming that as you have been fired, you will be taking no further action in this matter. You should also communicate to them that the file is available to the client and/or the new attorney on either's request. The letter should also clearly state what the applicable statute of limitations are.

Since there are no applicable statutes of limitation due to run in the near future, no other further affirmative action on your part is required in order to be in compliance with the Rules of Professional Conduct. The Committee notes that you have indicated that no litigation was started on behalf of the client and this eliminates the requirement, if any, of court approval for your withdrawal.

Finally, we recommend you consider opinion 88-45 of the Legal Ethics and Responsibility Committee of the Pennsylvania Bar Association. That opinion addresses similar concerns and may be of some further help to you.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.