Professional Liability Blog
Ethical Withdrawal From Representation
Your client has not paid you for several months and owes you tens of thousands of dollars. She is also difficult, irascible, and takes the notion of zealous advocacy too far. She demands that you file motions that you consider wasteful and borderline frivolous, and reschedule depositions and other events for no good reason. Every instinct is telling you to run, not walk, to the nearest exit. You desperately want to withdraw from representing your client but are not sure how to do so.
Can you simply file a notice of withdrawal? What rights does your client have? What about the court or opposing counsel? Can they object? The short answer is to be very careful. The answers to these questions can vary depending on the status of the case, the basis for your withdrawal, and whether your client consents and locates new counsel. The waters are muddy and you need to take care to ensure that you comply fully with all of your ethical obligations.
First, be sure to consult all of the governing rules. While the ethics of withdrawal are governed by Rule 1.16 of the Rules of Professional Conduct, the procedures for withdrawal are governed by the applicable Rules of Civil Procedure. Rule 11(c) of the Massachusetts Rules of Civil Procedure provides that an attorney can withdraw from a case by filing a notice only if: (i) there is successor counsel; (ii) no motions are pending before the court; and (iii) no trial date has been set. In “all other circumstances,” leave of court must be sought by motion. The Local Rules for the District of Massachusetts are much the same – prohibiting withdrawal by notice unless there is successor counsel, no motions, and no trial date and adding the requirement that there be no scheduled hearings or conferences or reports due. L.R. 83.5.2(c). Thus, in most circumstances, you will have to file a motion with the court and articulate your bases for withdrawing.
Grounds for Withdrawal
Mass. R. Prof. C. 1.16 provides for both mandatory and permissive withdrawal. A lawyer must withdraw from representing a client in three circumstances. First, if the representation will result in a violation of the Rules of Professional Conduct or other law; second, if the lawyer’s physical or mental condition impairs his or her ability to represent the client; and third, if the lawyer is fired. The latter two categories – impairment and discharge – are relatively self-evident, but when does continued representation result in a violation of the Rules? Most often, it occurs when a lawyer and client develop adverse positions and a conflict of interest arises. For example, if the client believes the lawyer has made an error, accuses the lawyer of malpractice, and refuses to consent to continued representation notwithstanding that conflict of interest, a lawyer must withdraw from continued representation. There is the risk that the lawyer will put his or her interests – in avoiding or ameliorating the claimed malpractice – before the client’s.
The Rules also permit withdrawal in two basic circumstances: if the client has or intends to pursue a criminal, fraudulent or a repugnant course of conduct, or if the client fails to pay the lawyer or continued representation will result in an unreasonable financial burden. Mass. R. Prof. C. 1.16(b)(1)-(5). There is also a catch-all “other good cause” provision. Id. 1.16(b)(6).
Thus, in the scenario described at the beginning of this article, the lawyer arguably has grounds to move to withdraw based on the non-payment for services and the client’s insistence on overly aggressive litigation tactics. Even then, however, withdrawal is not guaranteed. Courts can and do refuse to permit withdrawal – even when a lawyer is not getting paid – particularly where the administration of justice will suffer, for example, if it is shortly before trial or the client will be unable to find successor counsel.
Manner of Withdrawal
In all events, continue to be cautious. Under all circumstances, when withdrawing, a lawyer must try to mitigate the harm to the client, and must take steps to protect the client’s interests. In particular, the lawyer must be very careful to protect client confidences in any motion filed for withdrawal. A lawyer may need to disclose certain otherwise confidential information to persuade a tribunal that good grounds exist for withdrawal, and Rule 1.6(b) of the Rules of Professional Conduct provides for certain exceptions to the privilege, including “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” If that section applies to motions to withdraw, any disclosure must be very narrow and limited only to those with a need to know. Thus, the best approach may be to seek the client’s consent before disclosure and / or to file any such disclosure under seal. If disclosure will disadvantage or prejudice the client before the court, the lawyer should also consider seeking leave to file the motion and make the disclosure to a different judge to avoid any prejudice before the trial court. What the lawyer may and may not disclose is a minefield, however, and he or she may do well to obtain unbiased advice on the issue before moving to withdraw.
Withdrawing from a case is not as easy as appearing in a case. Lawyers must take care to comply with all of the rules and all of their ethical obligations. There is no running to the nearest exit – only a controlled, steady retreat resulting in a careful withdrawal.