End of Representation

• Publication year: 2003
• Pages: 59
• Citation: Vol. 32 No. 10 Pg. 59

32 Colo.Law. 59 Colorado Lawyer 2003.

2003, October, Pg. 59. End of Representation

---

59

Vol. 32, No. 10, Pg. 59

The Colorado Lawyer
October 2003
Vol. 32, No. 10 [Page 59]

Ethics for Colorado Lawyers Special Issue

End of Representation
by Julie M. Walker

Julie Walker is Special Counsel to Wheeler, Trigg &amp Kennedy, P.C. - (303) 256-3788. She has been a member of the CBA Ethics Committee since 1998

Julie Walker

Denny Deals, an associate at Acme Best & Crown ("ABC"), had worked hard during the first five years of his practice. Denny handled several large transactional matters that required many late hours and even overnights at the office. He also handled litigation matters - a few of which proved to be highly stressful, with emergency hearings and out-of-town depositions. Denny did so well that he began to develop a lively practice of his own

Much to the chagrin of his wife, Denny worked almost every weekend. However, he had received lots of kudos (and cash) for his dedication and high billable hours. Three months ago, he and his wife had their first child, Denny, Jr. While Denny anticipated that things would change once children came along, he was not prepared for how it would change his perspective on the practice of law.

Denny became increasingly frustrated with the contentiousness of other lawyers he had to deal with on a daily basis. He also found the competitive nature of "who would be the last associate to leave the office at night" to be frivolous and immature. He had a new life to care for and nurture. When Denny looked into his son's eyes, he knew he had to make some adjustments.

Denny decided to take a leave of absence from the firm. Before he could do that, he had several issues to resolve with his current clients. He sat down to lunch with Greta Greyhair, his mentor at ABC, and probed her for information on how to wrap up his practice for his time away.

Withdrawal from
Representation

"Greta, I have a couple of matters that are ongoing. Can I withdraw from representing those clients, using my leave of absence as a basis?" Greta explained there were several Colorado Rules of Professional Conduct ("Colorado Rules" or "Colo. RPC") and Colorado Rules of Civil Procedure ("C.R.C.P.") that had to be considered.

First, withdrawal from representation is governed by Colo.RPC 1.16 and C.R.C.P. 121, § 1-1(2). There are both mandatory withdrawal and permissive withdrawal situations. Colo.RPC 1.16(a) provides that the lawyer must withdraw from representation if: (1) the client demands that the lawyer engage in illegal conduct or conduct that otherwise violates the Colorado Rules; (2) the lawyer is physically or mentally unable to properly represent the client;1 or (3) the client discharges the lawyer, which may be with or without cause.2

Where withdrawal is based on the client's demand that the lawyer pursue unethical conduct, the lawyer must be especially careful with any explanation for withdrawal provided to the tribunal. The lawyer may be bound to keep confidential certain facts that explain the basis for withdrawal. The Comment to Colo.RPC 1.16 suggests the lawyer use "professional considerations" as the basis for withdrawal as a means to implicitly tell the tribunal the basis for withdrawal without disclosing any confidential information.3

Colo.RPC 1.16(b) provides that the lawyer may request permission to withdraw where:

1) the client insists on presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;

2) the client personally seeks to pursue an illegal course of conduct (e.g., perjurious testimony);

3) the client insists that the lawyer pursue a course of conduct that is illegal or prohibited by the Colorado Rules;

4) the client engages in other conduct that makes it unreasonably difficult for the lawyer to carry out the lawyer's employment effectively;

5) the client insists in a matter not before a tribunal that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer, but not prohibited by the Colorado Rules;

6) the client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees;

7) the lawyer's representation of the client may be compromised by the lawyer's inability to work with co-counsel;

8) the client consents to the lawyer's termination; or

9) the lawyer believes in good faith in a matter pending before a tribunal that other good cause exists.

Under certain circumstances, the tribunal may order the lawyer to continue the representation, despite good cause for termination. In that case, the lawyer must continue the representation.4

C.R.C.P. 121, § 1-1(2) states that a lawyer may withdraw only on order of the court and only after the lawyer has made reasonable efforts to give notice to the client that:

1) the attorney wishes to withdraw;

2) the court retains jurisdiction;

3) the client has the burden of keeping the court informed where notices, pleadings, or other papers may be served;

4) the client has the obligation to prepare for trial or hire other counsel to prepare for trial when the trial date has been set;

5) if the client fails or refuses to meet these burdens, the client may suffer possible default;

6) "the dates of the proceedings, including trial, will be provided and the holding of such proceedings will not be affected by the withdrawal of counsel;

7) service of process may be served on the client at his or her last known address; and

8) the client has the right to object within fifteen days of the date of the notice.

Whether on withdrawal or after discharge by the client, the lawyer still must take all reasonable steps to ensure the minimal consequences to the client.5 Unless issues of a retaining lien arise, the lawyer must provide the client with access and/or copies of the file, as set forth below. Where the imposition of a retaining lien creates a conflict for the client who needs access to the file in the lawyer's possession, the general consensus is that the legal right to execute a lien is subordinate to the ethical obligations...