When I was in public service, there was a lot I did not understand about private attorney behavior. Some things they did, totally confounded me. In my mind, private attorneys had all this choice. They had all this freedom! They were allowed to walk out of the courtroom to take a moment. They were allowed to roll up to court after docket call. So, I totally was confused at why they made certain decisions regarding their cases. Why were they so touchy about the nature of their appearance? So what if they were STILL the attorney of record? Why were they so grumpy about setting four separate “compliance” court dates? I mean, we have to be here anyway…right?

            Oh, poor ignorant me. How much did I fail to understand those choices? Now, I TOTALLY understand the reasoning behind those choices and those grumbles from opposing counsel table.

            Prime Example. When I managed to work out a consent order with opposing counsel and opposing counsel was tasked with writing the order, in my review of their draft order I would always find the following interesting language: “ Upon entry of this Order, Counsel for the Parties is withdrawn as counsel of record for the Parties.” Opposing counsel would also include language that released me as counsel as well for my client. I found myself editing that language out and wondering why the presumption that I too was withdrawing as well as they?

            Weird private attorney behavior? Nope. I have learned not weird at all. The private attorneys I had observed in the past fiercely correcting me as the prosecutor on the nature of their appearance had a real point. Certain types of cases can go on and on…I mean years and years of continued litigation. One great example of litigation that operates in this way is family court litigation. Making a general appearance in cases like that mean you can be in litigation as long as the minor children are still children. And if you got into that litigation when the kids were 5 and 7, get ready. You can be in the litigation for over a decade if you don’t be careful. Of course, usually over a span of years like that, clients almost always make different choices regarding their counsel along the way. But the court will not know any different unless you stay on top of your notices and orders to withdraw. I mean, you can stay on a docket for years if you are not careful! The Rules of Professional Conduct talk about lawyers remaining counsel of record unless they are formally released by the court. The Rules were not kidding. Your ass will literally be the attorney of record for a decade.

                 So, those attorneys that make it a point to write into orders that they are released as attorneys of record, without any prompting from the court or anyone else, have something going there. In addition to the Rules, it is really important to establish lines of representation not only by making sure to include in orders being released, but also by disengagement letters. How many of us out there actually write disengagement letters? They are very important because they really delineate to the client that the representation is over and that you are no longer their lawyer. Clients often need these bright line delineations because they will consistently want to think that you are their attorney, tethered to every legal problem in which they may become embroiled. No. Unless you have contracted with that person to be on call via the old school idea of the “retainer”, clients need to know that with every legal quandary, comes a new fee agreement and relationship understanding. And let’s be real and honest. There are some clients with whom you would bend over backwards to work with again and then there are some that, well….let’s just say that there is a sense and feeling of relief in getting back that Order from the court that you are released as their attorney of record.

              So, never before in my history have the words “I’m letting you go…” meant more to me. Because, there is a time to let go,  everyone. And usually that time is when that last Order is signed.