Plan Your Route Before Getting Out: Attorney Withdrawal

Sooner or later in a law practice, a problematic client will surface. In some cases, lawyers may take proactive measures, such as increasing communication or reducing legal fees, to mitigate any difficulties and salvage the attorney-client relationship. In other situations, the relationship may continue to deteriorate despite the lawyer’s best efforts to accommodate the client. The lawyer’s natural instinct may be to “fire” a troublesome client and withdraw from the representation. While the desire to flee may be understandable, the lawyer must carefully analyze the relevant case law and rules of professional conduct prior to withdraw. Unlike clients, who have an almost unfettered right to terminate an attorney-client relationship, lawyers do not enjoy such freedom. Fiduciary obligations and ethics considerations limit the lawyer’s options. Navigating a successful separation from a client requires protecting the client’s interests while complying with the rules and laws surrounding lawyer withdrawal. And, in some instances, the facts and circumstances will require a lawyer to continue representation in spite of any differences with a particular client. Lawyers who recklessly abandon their clients without forethought risk running a road to ruin.

 

Mandatory Withdrawal

Under some circumstances, the rules mandate that an attorney must withdraw from a matter. ABA Model Rule of Professional Conduct 1.16(a): Declining or Terminating Representation enumerates three scenarios where withdrawal is mandatory, which occur when:

 

  1. the representation will result in violation of the rules of professional conduct or other law;
  2. the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
  3. the lawyer is discharged.

 

With respect of the first scenario. The Comment section to the Rule clarifies that a client merely inquiring about or suggesting an illicit course of conduct does not trigger mandatory withdrawal by the attorney1. Rather, mandatory withdrawal applies to the client who insists upon illegal or unethical conduct. Similarly, lawyers must ensure that they abide by their jurisdiction’s rules of professional conduct. If, for example, a non-waivable conflict of interest develops, lawyers must withdraw from the representation.

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