CHAPTER 1 - 1-11 WITHDRAWING FROM OR CONCLUDING REPRESENTATION

• Jurisdiction: United States

1-11 Withdrawing from or Concluding Representation

1-11:1 Mandatory Withdrawal

A lawyer may not represent a client if the representation would require the lawyer to violate the Rules of Professional Conduct,⁵⁷⁴ the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client,⁵⁷⁵ or the lawyer is dis-charged.⁵⁷⁶ The mandatory nature of Rule 1.16(a) reflects the fact that some circumstances may arise which create conflicts or problems that cannot be reconciled and which require a lawyer to exit the relationship.

One example of circumstances requiring a lawyer to withdraw from representation because of a violation of a disciplinary rule would be if the lawyer were to be required to offer testimony in violation of the prohibition of a lawyer representing a client in a case where the lawyer must also be a witness.⁵⁷⁷ This requirement may not be absolute as in at least one case, the Supreme Court recognized the need to balance the lawyer's ethical duty with the client's right to choose his lawyer.⁵⁷⁸ If representation would violate a lawyer's duty of candor to the tribunal⁵⁷⁹ because the lawyer does not believe that the client will testify truthfully, then withdrawal may be mandated.⁵⁸⁰

One case involving mandatory withdrawal involved circumstances when continued representation created a conflict of interest on the part of the lawyer in violation of Rule 1.7.⁵⁸¹ Another court recognized mandatory withdrawal as being required when a client insists on pursuing a course of action involving claims that the lawyer believes frivolous.⁵⁸² In yet another case, withdrawal was mandated when the attorney-client relationship had so deteriorated that it would not be possible for the lawyer to pursue the client's claim.⁵⁸³

1-11:2 Permissive Withdrawal

Under some circumstances, permissive withdrawal is allowed if it can be accomplished without a material adverse effect on the client.⁵⁸⁴ Such circumstances include if the client persists in a course of action using the lawyer's services that the lawyer believes is criminal or fraudulent,⁵⁸⁵ the client has used a lawyer's services to commit a crime or fraud⁵⁸⁶ or the client insists in taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.⁵⁸⁷

Another area of permissive withdrawal is permitted when the client has failed to pay the lawyer's bill and the client has been given reasonable warning of the fact that the unpaid bill may result in the lawyer leaving the case⁵⁸⁸ or when the continued representation will create an economic burden on the lawyer.⁵⁸⁹

Withdrawal in the face of large unpaid legal bills creates many problems and often results in a disciplinary complaint. A lawyer who has lost track of or failed to manage a client's matter may be approaching a trial without either the hope of being paid for past efforts or the promise that if he spends more time, more money will come. Such 11th hour withdrawals may certainly expose the client to unpleasant and suboptimal results. Thus, if a client's advanced fee or retainer deposit has been exhausted, the better course is to have a prompt and timely discussion.

A lawyer withdrawing because of a financial problem may assert a "retaining lien" on the client's file, retaining the file as leverage to being paid.⁵⁹⁰ If the representation has resulted in money or goods, the lawyer may assert a "charging lien" on them.⁵⁹¹ A charging lien is prohibited in divorce proceedings.⁵⁹²

When the lawyer has withdrawn, the client may not be able to proceed with a new lawyer without a file or incurring a large expense in reproducing it. Thus, while retaining the file may be legally permissible, it may violate the ethical prohibition on disadvantaging the client when doing so. The best advice in such circumstances is for the lawyer to cut his losses, let the file go and write off the fees. Attempting to collect the overdue fees will probably...