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When Should a Lawyer Flip on a Client?

By William Vogeler, Esq. | Last updated on

Everybody's asking if Michael Cohen will flip, when perhaps the question should be will he get disbarred?

Sure, Cohen is more concerned about a jail sentence than his law license. But for most attorneys, that's not important right now.

Lawyers -- especially those who don't stand a chance at a presidential pardon -- ought to think about the real world ramifications of flipping on their clients.

Flip or Not to Flip?

It's an ethical question that should have been answered in the MPRE. Didn't you have a mnemonic for the Multistate Professional Responsibility Exam?

How about: "Mr. Pro, Really?" In other words, did you really have to ask that question? Hello, attorney-client privilege.

Of course, there is no privilege for clients who tell you they are about to commit a crime. It's the crime-fraud exception, for those who are studying for or forgot most of the bar exam.

In Cohen's case, it will be a balancing test: jail v. not jail. In your case, it will probably be about dealing with a former client in a motion to withdraw or a collection matter. 

Duty Not to Disclose

Every lawyer who has billed a client knows there's a time to get out of a case. Usually, it's when the client stops paying. (Wow. It sounds so wrong when you say it out loud.)

The American Bar Association says that when filing a motion to withdraw, lawyers "should err on the side of nondisclosure." Withdrawing for "professional considerations," for example, is safer than withdrawing for "non-payment."

For Cohen, the $130,000 payment to the porn star will certainly come up. It's probably not a fee dispute, but it is a lesson for all lawyers considering when to flip on clients.

Do it before they commit a crime, not after.

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