§4.5 RPC 1.16: Terminating the Attorney-Client Relationship

• Jurisdiction: Washington

V. RPC 1.16: TERMINATING THE ATTORNEY-CLIENT RELATIONSHIP

RPC 1.16 sets out the general rules governing termination of an attorney-client relationship and expressly preempts a statute (RCW 2.44.040) that purports to address the subject.²¹³ The most important thing to notice about the rule is the distinction between mandatory and permissive withdrawal, discussed below.

A. Mandatory Withdrawal

Under RPC 1.16, a lawyer is required to withdraw (or decline representation) if any one of three conditions is met: (1) the representation will result in a violation of the RPC or other law; (2) the lawyer's ability to represent the client is "materially" impaired by the lawyer's physical or mental condition; or (3) the client discharges the lawyer. The Restatement repeats these same conditions.²¹⁴ In reality, the second condition should collapse into the first, because a material impairment of the lawyer's ability to represent the client would surely cause the lawyer to violate other rules, such as the competence, diligence, and communication rules.²¹⁵ If a lawyer is not willing or able to comply with these basic rules, the lawyer must withdraw.²¹⁶ The 1972 CPR also required mandatory withdrawal when the lawyer knew or it was "obvious" that his client was taking a position "merely for the purpose of harassing or maliciously injuring any person."²¹⁷ This ground, too, is now subsumed under RPC 1.16(a)(1), given RPC 4.4, CR 11, and similar procedural rules.²¹⁸

The grounds for mandatory withdrawal are deceptively simple as stated. Before proceeding, however, it should be noted that RPC 1.16 makes no mention of a number of instances in which an attorney's authority ceases, whether or not the attorney has been discharged or would violate the rules. These are addressed in the Restatement.²¹⁹ A lawyer's authority ceases if the client dies (or, in the case of an entity client, loses its capacity to function).²²⁰ Authority to wind up the affairs of the former client may pass to a fiduciary such as a personal representative or a trustee, in the case of a real person, or to a trustee in bankruptcy or a receiver, in the case of an entity, and the fiduciary may, but is not required to, retain the same lawyer retained by the decedent.²²¹ Agency law generally provides that an attorney's authority also ceases if the client becomes incompetent, but that principle has arguably been modified to the extent that RPC 1.14 now permits a lawyer to seek a guardianship for an incompetent client.²²² Finally, a lawyer's authority ceases "as provided by contract or because the lawyer has completed the contemplated services."²²³ If it is not clear that the representation is over, either because the client reasonably expects additional services or because the lawyer hopes that additional services will be requested, the lawyer may owe continuing duties of protection to the client and may need to consider the client a current client for purposes of the conflict rules.²²⁴ Arguably, of course, in each of these instances the lawyer is obliged to withdraw because to (try) to continue would require the lawyer to breach one or more of the other rules or "other law" and so is nominally covered by RPC 1.16(a)(1). But the point made by the Restatement, which bears repeating, is that the lawyer's authority to act for the client ceases upon the occurrence of any of these common circumstances, whether or not the lawyer has formally withdrawn.

1. Discharge by Client

The most obvious basis for mandatory withdrawal by a lawyer is when he or she has been discharged by the client.²²⁵ The attorney-client relationship is terminable at the will of the client regardless of cause.²²⁶ Even if the case is a criminal one and the defendant has a constitutionally protected right to counsel, that right can be waived if the waiver is made "knowingly and intelligently."²²⁷

Effectuating a discharge, however, is more complicated. Ordinarily, discharge may be accomplished without special formality, as long as the client indicates an unmistakable purpose to cut off relations with the lawyer.²²⁸ Nonetheless, if the matter is before a tribunal, a client's discharge of a lawyer may not be effective if the client fails to comply with statutory or judicial procedures for discharge. In Haller v. Wallis, for example, a client who had clearly discharged her lawyer by letter, but had not done so in compliance with RCW 2.44.040, was held bound by a settlement entered into by the lawyer.²²⁹ RPC 1.16(a) purports to be effective "notwithstanding RCW 2.44.040." Insofar as a lawyer's ethical responsibilities go, this should make it clear that discharge is effective whether or not the statute has been complied with. It is less clear, however, whether the client continues to be bound by the actions of her lawyer absent compliance with the statute, as happened in Haller.

Furthermore, depending on the circumstances, the court may have authority to reject an attempted discharge by the client. Appointed counsel, for example, may not withdraw without court permission.²³⁰ In criminal representation, moreover, CrR 3.1(e) requires a defendant to show "good and sufficient reason" before counsel will be allowed to withdraw, but whether good cause has been shown is within the discretion of the trial court. Similarly, appellate counsel for a criminal defendant may only withdraw with permission of the court on a showing of good cause.²³¹

In a capital case, State v. Stenson,²³² the Washington Supreme Court had occasion to examine the extent of a defendant's right to discharge appointed counsel so as to effectuate a change of counsel or, if that were denied, to defend himself. As to the right to substitute counsel, the court stated:

A defendant does not have an absolute, Sixth Amendment right to choose any particular advocate. ... A criminal defendant who is dissatisfied with appointed counsel must show good cause to warrant substitution of counsel, such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant. Attorney-client conflicts justify the grant of a substitution motion only when counsel and defendant are so at odds as to prevent presentation of an adequate defense. The general loss of confidence or trust alone is not sufficient to substitute new counsel. Factors to be considered in a decision to grant or deny a motion to substitute counsel are (1) the reasons given for the dissatisfaction, (2) the court's own evaluation of counsel, and (3) the effect of any substitution upon the scheduled proceedings.²³³

On the basis of these principles, the court affirmed the trial court's refusal to grant the request for new counsel. It similarly affirmed the trial court's denial of the defendant's motion to continue pro se:

Criminal defendants have a constitutional right to waive assistance of counsel and represent themselves. The unjustified denial of this right requires reversal. However, a defendant's request to proceed pro se must be both timely made and stated unequivocally. The ... right to self-representation is not absolute and the defendant's motion to proceed pro se must be made in a timely fashion or the right is relinquished and the matter of the defendant's representation is left to the discretion of the trial judge.²³⁴

The court declined to rule whether Stenson's request to proceed pro se was untimely, occurring well into the trial as it did, because it concluded that Stenson's request was equivocal in any event. He really wanted different counsel (which he could not have) and did not really (or unequivocally) want to proceed without counsel.²³⁵

In addition to instances in which a client must obtain court permission to discharge a lawyer, there are occasions when a lawyer should seek court guidance before withdrawing, even when discharged by the client. For example, in the Fraser case, discussed above in Section IV., the Supreme Court approved of Fraser's refusal to withdraw when discharged by his guardian client.²³⁶ More generally, as also noted in Section IV., an incompetent client may not have the capacity to discharge the attorney.²³⁷

2. Threatened Violation of RPC or Other Law

In order for withdrawal to be required under RPC 1.16(a)(1), the prospect must be that the rules or other law "will" be violated if the lawyer continues, not that they "may" be. Moreover, Comment 2 makes clear that the obligation to withdraw is not triggered just because a client suggests something illegal or ethically impermissible, as long as the lawyer can continue without actually engaging in the impermissible conduct.²³⁸

One obvious example of the application of the rule is the situation in which the lawyer is simply not prepared to carry out the work that the client needs. Another is when the lawyer becomes convinced that the client intends to engage or is engaged in a criminal or fraudulent project. To assist such a project would be a violation of the rules and so the lawyer must withdraw. The commentary to RPC 1.2 states that if withdrawal is required, it may also be necessary for a lawyer to effect a "noisy withdrawal" by giving notice of the fact of withdrawal and disaffirming any opinion, document, affirmation, or the like.²³⁹ The reader is referred to Chapter 6 on confidentiality for further discussion of these exceptions.

The mandatory duty to withdraw is also triggered whenever a lawyer becomes enmeshed in an unwaived or a non- (or no longer) waivable conflict of interest.²⁴⁰ Most often, such conflicts come to the attention of a court when an opposing party moves to disqualify opposing counsel. If a court rules that a lawyer must be disqualified because of a conflict of interest, this is usually tantamount to a conclusion that RPC 1.16(a) has been triggered and that withdrawal is mandatory, although courts rarely say this.²⁴¹ Occasionally, however, a court will refer to the mandatory...