Withdrawing From a Case - Frequently Asked Questions

When does a lawyer have a duty to withdraw?

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Illegal and Unethical Activity

  • In general, a lawyer must withdraw or decline to represent a client when the relationship would require the lawyer to violate a law or ethical rule.1 A prudent lawyer should counsel the client about why the representation cannot continue.2 If the client refuses to alter the unethical or illegal conduct, then the lawyer must withdraw.3
  • The duty to withdraw also applies when a lawyer discovers that the client is already engaging in, and continuing, illegal or unethical activity.4 Lawyers should note that a “noisy withdrawal” may be required in this situation, in which case it may be necessary for a lawyer to “give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like.”5 Be sure to check your local rules for details.
  • Withdraw due to the illegal or unethical conduct of the client often invokes competing ethical obligations.6 When a matter is in litigation or arbitration, the lawyer must usually seek consent of the tribunal,7 always keeping in mind that client confidentiality rules usually prohibit the lawyer from disclosing the conduct that necessitates withdrawal.8 As the applicable model rule states: “[t]he 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.”9

Disability

  • A lawyer must withdraw when, “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.”10

Fired

  • Clients generally have the ability to fire their lawyer at any time,11 and a lawyer must withdraw from representation if this occurs.12 

1 See MODEL RULES OF PROF’L CONDUCT R. 1.16(a)(1) (amended 2013).

2 See MODEL RULES OF PROF’L CONDUCT R. 1.16(a)(1) (amended 2013).

3 See MODEL RULES OF PROF’L CONDUCT R. 1.16(a)(1) (amended 2013).

4 See MODEL RULES OF PROF’L CONDUCT R. 1.16(a)(1) (amended 2013); MODEL RULES OF PROF’L CONDUCT R. 1.2(d) cmt. 10 (1983) (amended 2013).

5 See MODEL RULES OF PROF’L CONDUCT R. 1.2(d) cmt. 10 (amended 2013).

6 See MODEL RULES OF PROF’L CONDUCT R. 1.16 cmt. 2 (amended 2013).

7 See MODEL RULES OF PROF’L CONDUCT R. 1.16 cmt. 2 (amended 2013).

8 See MODEL RULES OF PROF’L CONDUCT R. 1.16 cmt. 2 (amended 2013).

9 See MODEL RULES OF PROF’L CONDUCT R. 1.16 cmt. 3 (amended 2013).

10 See MODEL RULES OF PROF’L CONDUCT R. 1.16(a)(2) (amended 2013).

11 See MODEL RULES OF PROF’L CONDUCT R. 1.16 cmt. 2 (amended 2013).

12 See MODEL RULES OF PROF’L CONDUCT R. 1.16(a)(3) (amended 2013).

When may a lawyer be justified to seek withdrawl?

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The general rule is that a lawyer may withdraw from representation for any reason so long as withdrawal is not materially adverse to the client’s interests.13

However, certain conditions may warrant withdrawal even when it is materially adverse to the client’s interests.14 A lawyer is typically permitted to withdraw when:

  • The client persists in an activity that the lawyer reasonably believes is criminal or fraudulent.15
  • Withdrawal is discretionary in this situation because the lawyer is not assisting in the criminal or fraudulent conduct; the client is.16 However, withdrawal is mandatory when the client demands that the lawyer engage in conduct that furthers illegal or unethical activity.17
  • The client used the lawyer’s services for a past crime or fraud.18
  • The client matter is repugnant or the lawyer fundamentally disagrees with it.19
  • The client breaks a promise after the lawyer warns of withdrawal.20
  • The representation causes the lawyer financial hardship.21
  • The clients makes representation unreasonably difficult.22
  • Other good cause exists.23 

13 See MODEL RULES OF PROF’L CONDUCT R. 1.16(b)(1) (amended 2013); MODEL RULES OF PROF’L CONDUCT R. 1.16 cmt. 7 (1983) (amended 2013).

14 See MODEL RULES OF PROF’L CONDUCT R. 1.16 cmt. 7 (amended 2013).

15 See MODEL RULES OF PROF’L CONDUCT R. 1.16(b)(2) (amended 2013).

16 See MODEL RULES OF PROF’L CONDUCT R. 1.16 cmt. 7 (amended 2013).

17 See MODEL RULES OF PROF’L CONDUCT R. 1.16 (b)(1) (amended 2013).

18 See MODEL RULES OF PROF’L CONDUCT R. 1.16(b)(3) (amended 2013).

19 See MODEL RULES OF PROF’L CONDUCT R. 1.16(b)(4) (amended 2013).

20 See MODEL RULES OF PROF’L CONDUCT R. 1.16(b)(5) (amended 2013).

21 See MODEL RULES OF PROF’L CONDUCT R. 1.16(b)(6) (amended 2013).

22 See MODEL RULES OF PROF’L CONDUCT R. 1.16(b)(6) (amended 2013).

23 See MODEL RULES OF PROF’L CONDUCT R. 1.16(b)(7) (amended 2013).

What duties are owed to the client at the end of the relationship?

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A lawyer has a duty to comply with jurisdictional laws that may require notice or permission from a tribunal when ending representation.24

Lawyers must also take reasonable steps to protect the client’s interests and mitigate the consequences of withdrawal,25 including:

  • Giving the client reasonable notice of withdrawal;26
  • Allowing the client reasonable time to hire another lawyer;27
  • Returning client papers and property;28 and,
  • Refunding attorney’s fees not yet earned or incurred.29

Lastly, the lawyer has an indefinite duty to protect client confidences that continues past the end of representation.

24 See MODEL RULES OF PROF’L CONDUCT R. 1.16(c) (amended 2013).

25 See MODEL RULES OF PROF’L CONDUCT R. 1.16(d) (amended 2013); MODEL RULES OF PROF’L CONDUCT R. 1.16 cmt. 9 (1983) (amended 2013).

26 See MODEL RULES OF PROF’L CONDUCT R. 1.16(d)(amended 2013).

27 See MODEL RULES OF PROF’L CONDUCT R. 1.16(d) (amended 2013).

28 See MODEL RULES OF PROF’L CONDUCT R. 1.16(d) (amended 2013).

29 See MODEL RULES OF PROF’L CONDUCT R. 1.16(d) (amended 2013).

May a lawyer keep client documents when the client fails to pay attorney's fees?

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Under the ABA Model Rules, lawyers have a duty to return client papers and property when representation ends unless “permitted by other law.”30 Lawyers should note that a majority of states do allow lawyers to retain client papers as security for attorney’s fees. As always, check local rules.

 

30 See MODEL RULES OF PROF’L CONDUCT R. 1.16(d) (amended 2013).

 

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Information provided by Attorney Protective is not intended as legal advice. This publication provides best practices for use in connection with general circumstances, and ordinarily does not address specific situations. These best practices are not intended to meet or establish the standard of care, and sometimes recommend practices that exceed the standard of care. Specific situations should be discussed with legal counsel licensed in the appropriate jurisdiction. By publishing practice and risk prevention tips, Attorney Protective neither implies nor provides any guarantee that claims can be prevented by use of the suggested practices. Though the contents of Attorney Protective's Best Practice Database have been carefully researched, Attorney Protective makes no warranty as to the accuracy, applicability or timeliness of the content. Anyone wishing to reproduce any part of the Attorney Protective Best Practices Database content must request permission from Attorney Protective by calling 877-728-8776 or sending an email to erin.mccartney@attorneyprotective.com. Additionally the rules cited in the contents of this database may have since changed. You should check the laws and model rules in your state for specific information on the topics addressed here.