Dropping a Client Like a 'Hot Potato'

New York Law Journal

Originally Published November 2, 2024??

Professor Bennett Gershman and Joel Cohen, a senior counsel at Petrillo Klein & Boxer, engage in a back and forth over a perplexing ethical and practical issue that has recently arisen and may continue to bedevil law firms in an increasingly polarized society.

As the New York Times?reported on Oct. 27 , Katherine Franke, a Columbia University?School of Law?professor, was dropped as a client by Outten & Golden several months after she had retained the firm to represent her in a dispute with Columbia University's Office of Affirmative Action.

Franke?was being investigated for her statements in a TV interview about student protests at Columbia during which she made comments that were claimed to constitute harassment of Israeli students. Franke retained Outten & Golden in February 2024 as a pro bono client. The firm is well-regarded and has strong reputation for protecting the rights of employees.

But after representing Franke for five months, the firm terminated her as a client. In an email to Kathleen Peratis,?the Outten & Golden partner?whom Franke had retained, the firm's managing partner said that the firm's withdrawal was "as a matter of firm policy" because "continued representation may violate the [ethics] Rules. (See Rule 1.16 and Rule 1.17(A)2) of the New York Rules of Professional Conduct)." He stated that the firm's "professional judgment on behalf of a client will be adversely affected by the lawyer's own financial, business, property or other personal interests." The firm, he wrote, "has a strong interest in avoiding internal divisions and fostering a workplace that respects the individual experiences and viewpoints of our staff and attorneys."

He noted that the firm has just "adopted a policy against handling any matters relating to the Israeli/Palestinian conflict." He added that the firm's withdrawal "can be accomplished without material adverse effect on the client" and that "she should start to look for other counsel." After the firm's withdrawal, Peratis resigned from the firm and Franke instituted a disciplinary action in the Appellate Division, First Department's Grievance Committee against Outten & Golden?and two of its partners, one being the firm's managing partner.

Joel Cohen:?Ben, By way of background, some 20 years ago, when I was a partner at a prominent law firm, the most profitable partner in the firm—a corporate lawyer—chose to represent the Palestinian National Authority? on infrastructure work. The partnership was told that both the Israeli government and the U.S. State Department had vetted the representation and encouraged our firm to accept the engagement—"if the PNA is actually encouraging infrastructure building, they'll become opposed to terrorist acts." Frankly, several partners, including me, were uncomfortable with the representation. Given the representations that were made to us, I didn't want to cause any commotion. So, along with a few other partners, I simply asked to be excluded from any compensation arising from that representation.

The situation, today, involving Israel and its Palestinian neighbors in the Middle East and the turbulent confrontations on American campuses, is dramatically different. And law firms must deal with it in totally different ways that raise serious issues relating to legal representation and ethics. You do recognize these are extremely complicated issues, don't you?

Bennett Gershman:?I don't agree that for lawyers and law firms making representational decisions, the turmoil on college campuses, and the inflammatory rhetoric, raise issues any more difficult or controversial issues than, say, a woman's right to abortion, transgender rights, racial disputes, allegations against individuals for being fascists, and many other fiercely contested political questions of the day.

For me the central question is whether a lawyer or law firm, having made the considered decision to represent a client, and then having represented that client diligently for many months, may suddenly drop that client like a "hot potato" when other lucrative clients complain, or members or associates in the law firm are distressed. To me it's not a difficult question at all. To me, loyalty to the client is the touchstone of the profession. [See Preamble (2) to the?New York Rules of Professional Conduct ]. To me, a lawyer's courage and loyalty to a client rank much higher than concerns that the representation may be viewed as unpopular or divisive. As you know, the legal profession protects these values of loyalty and courage very differently than other professions. We can agree that a lawyer can refuse to take a case. Or, as you did, refuse to take a percentage of the compensation from a case. But if a lawyer agrees to take a case, she should not thereinafter throw the client to the wolves.

JC:?Yes, we agree that no lawyer or law firm is ethically required to undertake any representation, except perhaps if the lawyer practices in a remote "one horse" or "one lawyer" town. But in my case the firm did essentially accept the representation, not having been required to do so. And, notably, I would have been strongly opposed to that representation had I known about it before it was accepted. Indeed, I had no real vote (as the case did not involve a conflict with a client of mine)—but the firm's administration did have a say, and the retention did occur. And, maybe, at the time, it was a good thing.

That said, I agree with you that a law firm shouldn't simply fire a client willy-nilly when the going gets rough (whether or not it should have undertaken the representation in the first place). On the other hand, when a law firm no longer feels comfortable representing a client, the client— especially a law professor—might truly be concerned about whether the law firm will pull its punches in representing her. I would be concerned as the client! Indeed, there are different levels of assertiveness in representing any client—and that's simply a reality, quiet as it's kept. Put simply, I don't see the resolution of this as cut and dry as you seem to—i.e., that once you're in, you're basically stuck. And I certainly don't think it's a disciplinary issue, particularly if another law firm or, say, the American Civil Liberties Union, can step in to the representation immediately—as I imagine will have been the case here. Yes, I don't like a law firm simply pulling out of a representation without the client's consent because of some extrinsic factor (just as I wouldn't like a physician rejecting a patient because she doesn't like him). But at the same time, I don't think that the representation being pro bono is irrelevant at all. After all, a pro bono representation wouldn't raise any issue about the client having paid a hefty legal fee only to be let go before the representation was concluded.

BG:?I don't claim that once you're in you're stuck forever. But I feel that a lawyer who abandons a client in the middle of a lengthy representation needs to provide compelling reasons for the withdrawal, and also explain whether the lawyer considered other alternatives short of withdrawal. I don't believe the reasons for the?Outten & Golden?withdrawal satisfy my test. In this case it's fairly obvious that after the issue became especially heated, and Columbia's president, after testifying before Congress, rightly or wrongly became an object of vilification and ridicule, O&G got cold feet and decided to compromise its loyalty to its client. And it's a sad commentary on the profession if, as you claim, a lawyer who is "uncomfortable" with a client might somehow "pull [his or her] punches" and give the client less than zealous representation. Yes, Rule 1.16 appears to allow a lawyer to drop a client like a "hot potato" without giving any reason, as long as the termination "can be accomplished without material adverse effect on the interests of the client." But even if the firm made accommodations to protect the client's interests after dropping her, which in this case I believe they did not, the ethical rule, in my opinion, is deeply troubling. To me it demonstrates a gaping gap between ethics and morality.

JC:?Well, since you raise the "gap" between ethics and morality, I might mention that when I taught professional responsibility to law students, I would always tell our class in the first session to leave at the door when entering the class whatever ethics or morality they may have learned from their priest, rabbi or imam, or even from Oprah—inasmuch as the ethical obligations that apply to us as lawyers are often, indeed, antithetical to the ethical precepts that may exist in the real world.

To conclude, yes, I'm also not happy with a law firm dropping a client midway through the representation—unless, of course, it turns out that the law firm was seriously misled by the client during the intake process about what was involved or who the client really was. It seems here, however, that extrinsic factors—the events of Oct. 7, 2023, and thereafter—were the precipitating cause of the client being terminated. ?

?---

Bennett L. Gershman?is a?distinguished professor at the Elisabeth Haub School of Law at Pace University and author of "Prosecutorial Misconduct" (Thomson Reuters, 2d ed., 2019).?Joel Cohen?practices law as senior counsel at Petrillo Klein & Boxer, and is an adjunct professor at both Fordham and Cardozo Law Schools.

?