Q. Denying that she sped up to beat a red light, my injured client swore that she had lots of time to get to work at 8:00 a.m. Told that the police timed the crash at 8:32 a.m., she then changed her start time to 9. May I fire her for lying?
Trust is the foundation of all healthy attorney-client relationships. When clients spin facts or change their stories, you must decide whether the discrepancy is serious enough to constitute a "lie" and whether you can, in good conscience, present the new and improved version in court.
Evaluating the merits of a case is an ongoing process. To provide flexibility in light of new information, my retainer agreements "reserve the right to decline, or to withdraw from, this matter based upon facts which we obtain during the course of our investigation or other developments which prompt concerns regarding continued representation." This includes "concerns regarding the merits of the case."
When clients suddenly change their stories, or contradict themselves in suspicious ways, this should certainly give you pause and prompt additional investigation. Without disclosing the basis for your inquiry, you may wish to call your client's employer to verify her work schedule. If her boss provides flexible work schedules, you may decide to give your client the benefit of the doubt while still taking her shaky statement into account in evaluating the case for settlement. But if her boss confirms an 8:00 a.m. start time, or tells you that she had just been warned about her habitual tardiness, this — combined with other credibility concerns — may convince you to cut your losses and cut ties with an untrustworthy client.
In extreme cases, where you know your clients are lying, presenting perjured testimony would violate the Rules of Professional Conduct and require you to drop them.
This case might not rise to that level. It's a close call. Nobody's perfect and virtually all cases and clients raise concerns of one sort or another. Dubious details may raise credibility issues. But calling your client to the witness stand would not "suborn perjury," rob the case of merit, or require your withdrawal. The question is not whether you must withdraw from representation, but whether you may.
If you can withdraw without hurting her interests, you may do so upon a "reasonable belief" that her pursuit of the case would be "criminal or fraudulent." This standard is easier to satisfy if your doubts arise before filing suit and the client has plenty of time to retain new counsel. (Arguably, there is nothing to formally "withdraw" from.) Without significant harm to the client, the extent of your "reasonable belief" in the "fraudulent" nature of her claim may not prompt much scrutiny. Even then, it can't hurt to use a retainer agreement in which the client agrees to your withdraw in light of "concerns regarding the merits."
Once litigation starts, worries that you may have a "loser" on your hands may not suffice. Your ability to withdraw decreases as the prejudice to your client increases. So before you file suit, make sure the suit is one you can wear comfortably for some time to come.