Utah Bar Journal

When Must You Withdraw From Representing a Client?

The Rules of Professional Conduct require you to withdraw if continuing the representation "will result in violation of the rules of professional conduct or other law." Rule 1.16(a)(1), R. Pro. Con. This subsection recognizes that some duties trump others; the Comment following the rule exhorts us to "be mindful of [our] obligations to both clients and the court under Rules 1.6 and 3.3." So, for example, if a conflict emerges between your interests and those of your client, you may have to withdraw.1 Likewise, if the client demands that you engage in unethical conduct, you may end up having to withdraw.

You also must withdraw if your "physical or mental condition materially impairs [your] ability to represent the client." Rule 1.16(b)(2), R. Pro. Con. This is a little tricky because sometimes the attorney isn't the best person to evaluate whether the condition warrants withdrawal. Obviously, if you know you're ill or injured or impaired and will remain so for a long period, it behooves you to withdraw. I always encourage Ethics Hotline callers to take the approach that best protects their clients, and the conservative response here would be to make arrangements to withdraw sooner than later. Likewise, you ought to avoid taking new cases.2

The rule also requires an attorney to withdraw if "discharged."3 Rule 1.16(b)(3), R. Pro. Con. Earlier, I referred to this as a "no-brainer" situation, but you might be surprised to learn that not all attorneys take appropriate action.4 Sometimes it's because a contingent case is nearing conclusion and the attorney wants to ensure payment; other times it's because the attorney substitutes her judgment for that of the client. Either way, it's a violation of the rules unless a court orders the attorney to stay in the case. See Rule 1.16(c), R. Pro. Con. In the first instance, you may still assert a claim for the reasonable value of your fees,5 and in the second, however pure your motives, you still have to get out.6 Moreover, you can't contract around the client's right to discharge you.7

If the Criteria for Mandatory Withdrawal Aren't Present, Are You Stuck For Life In a Bad Attorney-Client Relationship?

No. But let the bad attorney-client relationships educate you about how to evaluate future potential clients and cases because it's always easier to avoid them than to extricate yourself when the relationship or the case goes south. As the Comment following the rule notes, "A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without conflict of interest." As one court put it,

[A]n attorney has certain obligations and duties to a client once representation is undertaken. These obligations do not evaporate because the case becomes more complicated or the work more arduous or the retainer not as profitable as first contemplated or imagined. . . . Attorneys must never lose sight of the fact that 'the profession is a branch of the administration of justice and not a mere money-getting trade." . . . 'The lawyer should not throw up the unfinished task to the detriment of his client.'

Kriegsman v. Kriegsman, 375 A.2d 1253, 1256 (N.J. Super. 1977) (citations omitted).

You may withdraw if doing so "can be accomplished without material adverse effect on the interests of the client." See Rule 1.16(b)(1), R. Pro. Con. If your client took out a loan or used all their savings to pay you a flat fee for the representation and you're not prepared to disgorge most if not all of it so that the client can obtain substitute counsel, then you may not be able to withdraw without material adverse effect on the client. But if, for example, you have a contingency fee matter that other attorneys would be happy to complete, and you're not so far into it that your share of the fees is so sizable that no other attorney will touch the case, you're free to withdraw. Check out subsection (d) and the pertinent portion of the Comment following the rule for an overview of what you must do to protect the client's interests.

You may also withdraw if "the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent," or if "the client has used the lawyer's services to perpetrate a crime or fraud."8 Rule 1.16(b)(2), (3), R. Pro. Con. Although these subsections appear similar, one involves your reasonable beliefs about ongoing activities,9 and the other implies your knowledge that your services were used in the past to perpetrate a crime or a fraud. In each case, you may withdraw, but are not required to do so.

The rule also covers situations in which "the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement." Rule 1.16(b)(4), R. Pro. Con. A common example of this is a client who accepts the death penalty and a defense attorney who can't countenance that decision.10 But, for example, a client's decision, against your considered recommendation, to exercise his right to testify by itself isn't necessarily sufficient reason for your mid-trial withdrawal.11

You may also withdraw if your client doesn't pay you, but there are a few caveats. See Rule 1.16(b)(5), R. Pro. Con. The failure must be "substantial,"12 and the attorney must give the client reasonable warning before withdrawing.13 These caveats are intended to prevent coercive tactics on the lawyer's part.14 Ideally, you would disclose this in your retainer agreement,15 and would provide further notice in writing as soon as payments become overdue. This will at least help you address a Bar complaint to the effect that you dumped the client just when the going got rough. With clients whom you suspect are financially compromised, consider collecting a flat fee up front, but keep in mind that if the relationship is over before its ends are achieved, you'll have to refund whatever you haven't earned. See Rules 1.16(d), 1.5(a), 1.15(c), R. Pro. Con.

Suppose you're financially in over your head with costs you agreed to advance, and you've reached the point where you just can't keep going and pay your rent and overhead, too. What then? YouÕre allowed to withdraw if "the representation will result in an unreasonable financial burden on the lawyer." Rule 1.16(b)(6), R. Pro. Con. Let this circumstance be a cautionary tale about carefully evaluating what you're getting into before you undertake the representation. I remember a case in which a fairly green attorney undertook representing a client in a serious criminal matter, only to realize that the time required for the representation, coupled with the out-of-pocket expenses the attorney assumed, would engulf the attorney's entire practice. Unfortunately, the attorney realized this so late that the withdrawal injured the client, and the attorney wound up with a Bar complaint, and ultimately some discipline. This might have been avoided with research and a careful assessment of what's involved in representing a client in this situation.

What if you've got a client who won't communicate and doesn't cooperate in getting you materials and information necessary to the representation? This, too, is a situation with an out: an attorney may withdraw if the representation "has been rendered unreasonably difficult by the client." Rule 1.16(b)(5), R. Pro. Con.16 Again, I urge you to document the client's lack of cooperation with reminder letters, followed by letters cautioning that your withdrawal is imminent unless the client immediately provides you with the necessary assistance.

A client's persistent obnoxiousness to you and your staff might also invoke the provision allowing withdrawal if the conduct makes continuing unreasonably difficult. For example, a client's threats, accusations, and refusal to accept advice can render the representation unreasonably difficult.17

Another means of exit would be the catch-all provision that permits an attorney to withdraw when "other good cause for withdrawal exists." Rule 1.16(b)(7), R. Pro. Con. Bear in mind that "good cause" doesn't encompass, without more, a client's refusal to accept settlement.18 But it could include your discovery of facts that might have made you avoid the representation in the first place.19

Note that under subsection (b)(1), you need not have any reason at all for withdrawing provided you can do so "without material adverse effect." The other subsections offer reasons for withdrawing that are so significant they aren't expressly conditioned on lack of material adverse effect on the client. You're not entirely off the hook, though, because subsection (c) requires attorneys to "comply with applicable law requiring notice to or permission of a tribunal when terminating a representation." Rule 1.16(c), R. Pro. Con.20 This safeguards clients from abandonment when precious rights may be in issue, and it protects court schedules from the havoc of last-minute withdrawals, even when they are prompted by legitimate concerns. In other words, if you stick with the representation long enough, you may be stuck for good: as the Comment notes, "Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded."

From a practical ethical standpoint, a court's refusal to release you will not result in a violation of the disciplinary rules even if your client has used your services "to perpetrate a crime or fraud." This is because "[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." Rule 1.16(c), R. Pro. Con. From a practical financial perspective, though, it may pose some problems. Which is why, if your client's financial situation will result in an unreasonable financial burden for you, it's best to decline in the first place, or to withdraw before the case has progressed so far that a court will not grant you permission to withdraw.

Conclusion

Take a careful look before you agree to represent someone. Avoiding problem clients is the best way to avoid difficulties in terminating the relationship. But don't assume there's no way out if the relationship sours. There are a host of legitimate reasons for an attorney to end a representation, and provided you follow applicable rules of the tribunal and take reasonable steps to protect the client's interests, you may be able to ethically extricate yourself. And remember, you can call the Office of Professional Conduct's Ethics Hotline (531-9110) to discuss your own contemplated conduct in these situations.

1. See e.g. People of the State of Colorado v. Riddle, 35 P.3d 146, 150 (Colo. 1999) (lawyer violated rule by failing to withdraw when there was conflict of interest); In re Hunter, 734 A.2d 654, 654 (D.C. 1999) (attorney should have withdrawn given conflict of interest and other rule violations); In re Hoffman, 700 N.E.2d 1138, 1139 (Ind. 1998) (attorney must withdraw if continuing representation conflicts with attorney's own interests).

2. See e.g. Mulkey v. Meridian, 143 F.R.D. 257, 260-251 (W.D. Okla. 1992) (advertising for new clients when attorneys had physical and mental impairments at odds with Rule 1.16); In re Barnes, 691 N.E.2d 1225, 1226 (Ind. 1998) (rule violated by attorney's failure to withdraw once it became apparent that his depression prevented completing the representation); In re Francis, 4 P.3d 579, 580 (Kan. 2000) (attorney should have realized he or she could not effectively represent client and withdraw).

3. The rule may not apply to government lawyers. See e.g. Coyle v. Board of Chosen Freeholders, 787 A.2d 881, 885 (N.J. 2002) (statutes control grounds for discharge of government attorneys).

4. See e.g. Oklahoma Bar Ass'n v. Israel, 25 P.3d 909, 915 (Okla. 2001) (attorney violated rule by continuing after discharge, no matter how sincere his belief that he could do so to protect his lien rights). You might also be surprised to know that many clients don't realize they are allowed to fire their counsel.

5. See e.g. Comment, Rule 1.16 ("A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services."); Campbell v. Bozeman Investors, 964 P.2d 41, 45 (Mont. 1998).

6. As the Comment notes, however, you "may take reasonably necessary protective action as provided in Rule 1.14."

7. See e.g. Crabtree v. Academy Life Ins. Co., 878 F. Supp. 727, 730-731 (E.D. Penn. 1995) (client has absolute right to terminate representation regardless of contractual arrangement).

8. See State v. Jones, 78 Mont. 121, 126-130, 923 P.2d 560 (Mont. 1996) (client's lack of persistence in announcing intent to commit perjury could vitiate counsel's reasonable belief).

9. See e.g. Jones, supra n.8 (initial duty when faced with client's stated intent to perjure is attempt to dissuade).

10. See e.g. Red Dog v. State, 625 A.2d 245, 247 (Del. 1993) (attorney who could not in good conscience represent client who accepted death penalty may seek leave to withdraw).

11. See e.g. Nichols v. Butler, 953 F.2d 1550, 1553 (11th Cir. Ct. App. 1992).

12. Fidelity Nat'l Title Ins. Co. v. Intercounty Nat'l Title Ins. Co., 310 F.3d 537, 540-541 (7th Cir. 2002) ($470,000 counts as substantial); Cherokee Nation v. United States, 42 Fed. Cl. 15, 17 (Fed. Cl. 1998) ($285,000 is substantial).

13. See Cherokee Nation, supra n.12 (repeatedly telling client verbally and in writing that failure to pay would result in withdrawal constituted reasonable warning).

14. See Fidelity, supra n.12.

15. The Comment notes that "it may be advisable to prepare a written statement reciting the circumstances" of withdrawal.

16. See e.g. Ambrose v. Detroit Edison Co., 237 N.W.2d 520, 522-523 (Mich. 1975) ("total breakdown of communications" and resulting failure to cooperate might justify withdrawal).

17. See Ashker v. International Bus. Machs., Corp., 607 N.Y.S.2d 488, 489 (N.Y. 1994).

18. See e.g. May v. Siebert, 264 S.E.2d 643, 679 (W.V. 1980); see also Rule 1.2(a), R. Pro. Con.

19. WSF, Inc. v. Carter, 803 So.2d 445, 448-449 (La. Ct. App. 2001) (attorney's discovery of client's criminal background constituted good cause for withdrawal).

20. See e.g. In re Fuller, 621 N.W.2d 460, 466 (Minn. 2001) (even if required to withdraw, attorney must still follow tribunal's procedural requirements).