§4.4 - Permissive Withdrawal

• Jurisdiction: Washington

§4.4 PERMISSIVE WITHDRAWAL

RPC 1.16(b) lists the various circumstances in which a lawyer is permitted to withdraw from representation but is not required to do so. Under RPC 1.16(b)(1), a lawyer may withdraw if it "can be accomplished without material adverse effect on the interests of the client." Other situations accommodated by the rule are more specific. In any case,

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the lawyer must take steps as outlined in RPC 1.16(d) to protect the client's interests upon withdrawal. See §4.6 . When withdrawal is sought by a privately retained attorney in a civil case, it will generally be allowed. Kingdom v Jackson,78 Wn. App. 154, 160, 896 P.2d 101 (1995), review denied,129 Wn.2d 1014 (1996). The court's approval "should be rarely withheld and then only upon a determination that to grant said request would interfere with the efficient and proper functioning of the court." Id.

(1) Client crime or fraud—lawyer reasonably believes

RPC 1.16(b)(2) allows an attorney to withdraw if "the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent." A "reasonable belief is one with a "firm factual basis." State v. Berrysmith,87 Wn. App. 268, 276, 944 P.2d 397 (1997), review denied,134 Wn.2d 1008 (1998) (citing State v. James,48 Wn. App. 353, 366-67, 739 P.2d 1161 (1987)); see also RPC 1.0A(i) (definition of "reasonable belief). As noted in RPC 1.16 cmt. 7, "a lawyer is not required to be associated with such conduct even if the lawyer does not further it."

One of the most difficult situations of potential client crime or fraud is that involving a client's plan to commit perjury at trial. When this arises in a criminal case, the lawyer not only must avoid suborning perjury but must also protect the attorney-client privilege and preserve the client's constitutional rights to the maximum practicable extent. Counsel should first attempt to dissuade the client from committing perjury and explain the consequences of the decision. If counsel is successful, that ends the problem. If not, and if the client persists in the intention to commit perjury, Berrysmith describes one potential approach: a motion to withdraw in an ex parte hearing before a judge other than the trial judge. 87 Wn. App. 268. This minimizes prejudice to the defendant while providing for a judicial determination of whether counsel's belief that the client intends to commit perjury is reasonable.

If...