§4.3 - Mandatory Withdrawal

• Jurisdiction: Washington

§4.3 MANDATORY WITHDRAWAL

RPC 1.16(a) sets forth the limited number of circumstances in which withdrawal from representation is mandatory. If these issues arise at the commencement of representation, the lawyer should decline the case altogether.

[Page 4-4]

(1) Violation of RPC or other law

RPC 1.16(a)(1) provides that a lawyer shall decline to represent a client or withdraw from representing a client "if the representation will result in violation of the Rules of Professional Conduct or other law." RPC 1.16 cmt. 1 explains that representation should not be undertaken "unless it can be performed competently, promptly, without improper conflict of interest and to completion." Failing to withdraw from representation of clients whose interests are in actual conflict is a violation of RPC 1.16(a)(1). See In re Discipline of Carpenter,160 Wn.2d 16, 28, 155 P.3d 937 (2007); State v. Rooks,130 Wn. App. 787, 796-98, 125 P.3d 192 (2005), review denied,158 Wn.2d 1007 (2006) (explaining that law firm may not represent two defendants in two cases when the defendant in one case is attempting to negotiate a plea bargain by providing incriminating testimony against the defendant in the other case; rather, the firm must withdraw from both). See also Chapter 9 (Litigation Ethics.)

Washington courts may, sua sponte, "disqualify an attorney, whose representation of a client poses an actual conflict with himself or another client." In re Marriage of Wixom & Wixom, 182 Wn. App. 881, 904, 332 P.3d 1063, 1075 (2014), review denied, 182 Wn.2d 1022 (2015). In Marriage of Wixom, the court warned that "[i]f an attorney does not heed an admonition to withdraw, he injures his profession, demeans it in the eye of the public, does a disservice to this court, and runs the risk even of subverting the justice system." Id. at 905.

Withdrawal is also mandatory when the representation necessarily entails violation of the law. As noted in RPC 1.16 cmt. 2, however, a client's mere suggestion that the lawyer participate in misconduct does not trigger the mandatory withdrawal rule. Likewise, RPC 1.2(d) provides that a lawyer may not counsel a client to engage in criminal or fraudulent conduct, but may discuss the legal consequences of any course of conduct the client proposes. Nonetheless, if the lawyer discovers that the lawyer's assistance is being used to perpetrate criminal or fraudulent conduct, the lawyer must, at a minimum. withdraw. RPC 1.2 cmts. 9, 10.

[Page...