Ethics: Withdrawing from representation
Vol. 76, No. 4 / July - Aug. 2020
Melody Nashan is staff counsel for the Office of Chief Disciplinary Counsel in Jefferson City.
Clients sometimes bring surprises to the attorney-client relationship that even the best screening process doesn’t uncover.2 Additionally, attorneys experience unexpected life events that make certain representations untenable. Attorneys terminate attorney/client relationships every day. Attorneys may think about withdrawing from a difficult representation several times a day. Whether an attorney may or must withdraw from representing a client, the lawyer should check the Rules of Professional Conduct before acting.
Rule 4-1.16(a) addresses the ‘“must’ I withdraw” question; and Rule 4-1.16(b) addresses the ‘“may’ I withdraw” question.
Rule 4-1.16(a) lists three situations when an attorney must withdraw from representing a client: when “the representation will result in violation of the rules of professional conduct or other law;” when “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client;” or when “the lawyer is discharged.” These situations are generally straightforward, but attorneys do need to engage in self-analysis to ensure that their health does not interfere with their competency and the diligent representation of their client. Additionally, attorneys sometimes have difficulty accepting their termination and don’t take the steps “reasonably practicable” to protect the client’s interests after their discharge.3
The situations in which a lawyer may seek to withdraw from the representation of a client are numerous. Rule 4-1.16(b) lists seven. The first reason listed is, without expressly so stating, withdrawal with no good cause. A lawyer may withdraw if that “withdrawal can be accomplished without material adverse effect on the interests of the client.”4 Timing is critical here. If, for example, a significant deadline is approaching, depending on all the attendant circumstances, including whether another Rule 4-1.16(b) discretionary reason is applicable, withdrawal might be improper.
Most of the discretionary reasons for withdrawal listed in the rule are fairly specific and state a cause for withdrawal:
- “the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
- the client has used the lawyer’s services to perpetrate a crime or fraud;
- the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has fundamental disagreement;
- the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; or
- the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.”5
One of the most common reasons an attorney seeks to withdraw is because the client fails to pay agreed-upon fees. If the client does not make timely payment for services to the attorney, the attorney may seek to withdraw because the client has failed “substantially to fulfill” his or her obligation to the attorney. That provision does not, however, give the attorney permission to stop work. Even if the client is behind in his or her payments, and even if a motion to withdraw is pending, the attorney must continue diligently representing them until they have been allowed to withdraw. Additionally, it is not permissible to include in a representation agreement that work will cease if timely payments are not made.
Of course, there are many reasons lawyers may want to terminate a particular lawyer-client relationship. The last discretionary reason to withdraw from representation is that “other good cause for withdrawal exists.”6 An example included in Legal Ethics Counsel’s Informal Advisory Opinions is where the lawyer has been unable to contact the client. If the lawyer has undertaken a reasonable investigation and taken sufficient steps to try to make contact, the lawyer may move to withdraw.7
Whether the withdrawal is mandatory or discretionary, the lawyer must check the procedural requirements related to any attempt to withdraw. Rule 4-1.16(c) provides: “A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation unless the lawyer has filed a notice of termination of limited appearance. Except when such notice is filed, a lawyer shall continue representation when ordered to do so by a tribunal notwithstanding good cause for terminating the representation.”
“Applicable law requiring notice to or permission of a tribunal” will be provided in the local rules of court. In Missouri, the local rule of the circuit courts regarding attorney withdrawal is Local Rule 21.4. Note that each circuit has its own “local” rules. Some circuits allow withdrawal without leave of court under some prescribed circumstances.8 Others require all motions to withdraw to be noticed-up for a hearing.9 Lawyers must check the local rules.
Somewhat counterintuitively, even the “must” withdraw requirements are subject to exceptions. For example, even if the client fires the attorney, the judge may not sustain the attorney’s motion to withdraw even in this “mandatory” withdrawal situation. The most common circumstance in which this occurs is when a criminal defendant has been appointed counsel. “A client seeking to [discharge appointed counsel] should be given a full explanation of the consequences. These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, requiring self-representation by the client.”10 A judge also may deny a motion to withdraw after discharge if the judge suspects the client is trying to delay or otherwise manipulate the proceedings. If the court denies the attorney’s motion to withdraw, the attorney must continue to represent the client. The attorney could seek review of the judge’s decision by a higher court, but he or she must diligently continue to represent the client unless and until the attorney is allowed to withdraw.11
When filing a motion to withdraw, attorneys must be mindful of their duty of confidentiality.12 Generally, “a statement that professional considerations require termination of the representation should be accepted as sufficient.”13 Another statement commonly used is: There has been a break-down in the attorney-client relationship. If the court orders an attorney to say more, after communicating with his or her client as required by Rule 4-1.4, and pursuant to Rule 4-1.6(b)(4), the attorney may disclose the minimum amount of information necessary to comply with the court order. This is a fine line to walk. Attorneys should resist the urge to be vindictive. Brevity and soberness will be the attorney’s friend.
The bottom line is that an attorney may withdraw from the representation of a client for almost any reason if the withdrawal will not have a materially adverse effect on the interests of the client, and if the court allows it. Whether a withdrawal is mandatory or discretionary, the lawyer must “take steps to the extent reasonably practicable to protect a client’s interests.”14 The lawyer should, therefore, consult the rules and plan a withdrawal so that the client receives adequate notice, including time to retain other counsel, the prompt possession of their file, and the refund of any unearned or incurred advance payment of fees or expenses. Lawyers facing questions about withdrawal may also contact their malpractice carrier’s risk managers and the Legal Ethics Counsel.
1 Melody Nashan is staff counsel for the Office of Chief Disciplinary Counsel in Jefferson City.
2 “A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest, and to completion. Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded.” Missouri Rule of Professional Conduct (“Rule”) 4-1.16 cmt. .
3 See Rule 4-1.16(d).
4 Rule 4-1.16(b)(1).
5 Rule 4-1.16(b)(2)-(6).
6 Rule 4-1.16(b)(7).
7 See Legal Ethics Counsel Informal Advisory Opinion 950248.
8 For example, Local Rule 21.4 of the 16th Circuit Court of Jackson County, Missouri.
9 For example, Local Rule 21.4 of the 14th Circuit Court of Randolph County, Missouri.
10 Rule 4-1.16 cmt. .
11 See Legal Ethics Counsel’s Informal Advisory Opinion 20080043.
12 Rule 4-1.6.
13 Rule 4-1.16 cmt. .
14 Rule 4-1.16(d).