Breaking Up Is Hard to Do

In today’s competitive legal market, it seems counterintuitive for a lawyer to want to drop a client. However, circumstances may arise that make disengagement necessary, or at least preferable, for the lawyer or the client. The client has a right to discharge the lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services. However, the lawyer’s right to terminate the attorney-client relationship is restricted by Rule 1.16 of the Rules of Professional Conduct.

Rule 1.16(a) addresses mandatory withdrawal. Under Rule 1.16(a), a lawyer must withdraw from a representation when the lawyer is discharged or the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. In addition, the lawyer must withdraw if continued representation will result in a violation of the law or the Rules of Professional Conduct. For example, Rule 1.16(a) is triggered when a client requests a lawyer to take an action that would violate Rule 3.3 (Candor Toward the Tribunal). A lawyer is also required to withdraw if continued representation would violate Rule 1.7 (Conflict of Interest) or Rule 3.7 (Lawyer as Witness). 

Rule 1.16(b) lists nine scenarios where a lawyer has the discretion—but is not required—to withdraw from representing a client. The first scenario set out in Rule 1.16(b) is interesting. Under 1.16(b)(1) a lawyer does not have to give a specific reason for terminating the representation, but may withdraw so long as the “withdrawal can be accomplished without material adverse effect on the interests of the client.” The comments to Rule 1.16 provide little guidance on this provision, stating only that, “[f]orfeiture by the client of a substantial financial investment in the representation may have such effect on the client’s interests.” This subsection seems to permit a lawyer to withdraw from representation of a client for any reason or even no reason at all.

However, a lawyer should proceed under Rule 1.16(b)(1) with caution. It is hard to imagine that the lawyer’s withdrawal will not have some adverse effect on the client, even if the lawyer does not consider it material. Also, comment [1] to Rule 1.16 emphasizes that a lawyer “should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest, and to completion.” That being said, if the representation is fairly new and there are no upcoming deadlines, the lawyer may probably withdraw without any material adverse effect on the client. A quick consult with a lawyer for a malpractice insurance company provided this response:

The main issue we emphasize is that any termination by the attorney should be done sooner rather than later. It is a fool’s errand to wait and hope that some unreasonably difficult client situation will resolve itself or get better with time. The longer you wait to terminate, the more likely it is that the client will be prejudiced by the withdrawal.

The remaining scenarios listed under Rule 1.16(b) permit the lawyer to withdraw even if there will be a material adverse effect on the client. For example, Rule 1.16(b)(3) and (5) allow a lawyer to withdraw when the client pursues an action that the lawyer believes is criminal or fraudulent, or when the client has used the lawyer’s services to perpetrate a crime or fraud. Rule 1.16(b)(4) permits withdrawal when the client insists on conduct that is repugnant to the lawyer or action that is contrary to the advice and judgment of the lawyer.

Rule 1.16(b)(6) and (7) pertain to contractual issues relative to the attorney-client relationship. Rule 1.16(b)(6) permits withdrawal if the client refuses to fulfill his obligations regarding the lawyer’s services. Rule 1.16(b)(7) permits withdrawal if the representation imposes an unreasonable financial burden on the lawyer. The most common basis for withdrawal under these subsections is the client’s failure to pay legal fees. It is important to note that before a lawyer may withdraw due to a client’s failure to pay, Rule 1.16(b)(6) requires that the client be given “reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.” Also, a lawyer may not withhold services to coerce payment in this scenario.

Rule 1.16(b)(9) is a “catchall” that permits withdrawal for “other good cause.” For instance, if a client files a grievance against a lawyer during ongoing representation, the lawyer may file a motion to withdraw under Rule 1.16(b)(9). However, withdrawal is not mandatory. The lawyer should consider whether she reasonably believes she can continue to provide competent and diligent representation to the client despite the grievance and whether the client wants the lawyer to continue the representation. If the answer to both of these questions is “yes,” the lawyer should ask the client to confirm his consent to the continued representation in writing. (Note that if the probity of the lawyer’s own conduct in the matter is in serious question, the lawyer may have a conflict under Rule 1.7 that would necessitate withdrawal.)

It is important to note that all of the subsections in Rule 1.16(a) and (b) are subject to the requirements of Rule 1.16(c) and (d). In matters pending before a tribunal, Rule 1.16(c) requires a lawyer to obtain the court’s permission to withdraw from the representation. The court has the discretion to deny a request to withdraw, regardless of the grounds for the withdrawal motion. If withdrawal is denied, the lawyer must continue the representation with no reduction in responsibilities to the client. This scenario may, unfortunately, require a lawyer to perform legal services without expectation of payment. Rule 1.16(c) also provides that, “[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” The denial of a motion to withdraw can result in some difficult situations for the lawyer and the client. The lawyer should have the motion to withdraw and the court’s denial memorialized in the court record. Other than that, the lawyer will have to continue the representation to the best of her ability under the circumstances.

Rule 1.16(d) requires that the withdrawing lawyer take steps to protect the client’s interest, including giving reasonable notice, allowing time for the client to engage other counsel, surrendering papers and property to which the client is entitled, and refunding any unearned fees. When the lawyer files a motion to withdraw and there are impending discovery deadlines, deposition notices, or hearing and trial dates, the lawyer should file a motion to continue in conjunction with the motion to withdraw.

What should the lawyer include in the motion to withdraw? Lawyers should craft withdrawal motions carefully to avoid disclosing confidential client information or disparaging the client. The motion needs to be vague, but effective. Comment [3] to Rule 1.16 provides:

Difficulty may be encountered if withdrawal is based on the client’s demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3. (Emphasis added).

I recommend that the lawyer cite the applicable subsection of Rule 1.16, without including the text of the particular provision. A lawyer may want to contact the risk management department of her insurance carrier for advice in how to draft the motion. Although a lawyer should be wary of including too much detail in the motion, the lawyer should be prepared to provide more information upon the judge’s request.

There are certain special considerations a lawyer may need to take into account when considering withdrawal. Comment [6] to Rule 1.16 addresses clients with diminished capacity and provides:

If the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client’s interests. The lawyer should make special effort to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 1.14.

The better course of action may be for the lawyer to continue the representation and seek protective action.

What about missing clients? There is an excellent article on this particular issue written by a noted legal scholar (okay, it was written by me) located on the State Bar’s website. The article, “Where’s Waldo? (Journal 16,4 - December 2011), provides that where a lawyer has not heard from his client in over a year, the client’s failure to contact the lawyer is considered a “constructive discharge,” and the lawyer must file a motion to withdraw pursuant to Rule 1.16(a)(3). (But you really should read the whole awesome article.)

Once the motion to withdraw is granted, the lawyer should follow up with a letter of disengagement to the client. The letter should affirm the current status of the case and remind the client of any pending deadlines. However, the lawyer should be careful with statements about exact dates or deadlines because a misstatement can expose the lawyer to a malpractice claim. The letter should also summarize the status of any fees and costs collected and outstanding, explain any remaining charges for legal fees, and include arrangements for the transfer of any unearned funds remaining in the lawyer’s trust account. Finally, the letter should include arrangements for transfer of the client’s file.

Just remember before you agree to take on any representation:

Comma, comma, down dooby doo down down
Breaking up is hard to do.
—Neil Sedaka “Breaking Up is Hard to Do” (RCA Records 1962 & Rocket Records 1975) 

Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.