Withdrawal and Disqualification

Withdrawal, Disqualification and Termination

The Rules also prescribe proper procedures for the termination of the lawyer-client relationship in order to minimize the amount of damage to all parties involved in a case when there is an irreconcilable issue related to the representation. 

It is important to pay attention to the difference between the words “may” and “must” when researching ethics rules about withdrawal and disqualification. Mandatory withdrawal means a lawyer “must” terminate employment, i.e., the lawyer has no latitude in deciding whether or not to withdraw. See Model Rule 1.16(a). A lawyer “may” terminate his employment when a rule of permissive withdrawal applies, provided there is no “material adverse effect” on the client. See Model Rule 1.16(b). First, let’s look at mandatory withdrawal scenarios. 

Mandatory Withdrawal

Withdrawal is mandatory, or representation must be declined if:

1. The representation will result in violation of the rules of professional responsibility 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 by the client. See Model Rule 1.16(a). 

If a case is before a court, an attorney generally may not withdraw without the court’s permission – even if one of the aforementioned grounds for mandatory withdrawal is present. As stated in Model Rule 1.16(c), “When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” 

Usually a lawyer will not be permitted to withdraw simply because such a withdrawal would not have a materially adverse effect on the client. You need to have a specific reason for withdrawing, and that reason must satisfy both the text of the ethical rules and the court itself, or the court will not give leave to withdraw. 

If a court orders that a lawyer must continue the representation, the lawyer is required to continue even if there is good cause for termination.

Let’s look at some examples of questionable mandatory withdrawal scenarios:

EXAMPLE (1): You take on the representation of a couple in their divorce proceedings. Both the husband and wife have been friends of yours since high school, and they trust you with their personal information. You agree to represent them, and they are grateful because it will cost them a whole lot less in total to use you alone than it would for each of them to hire a lawyer. Plus, they are sure the negotiations for divorce will be more amicable with you as a "teammate" for both of them, instead of each hiring their own lawyers.

We will later discuss the rules for conflicts, but this conflict’s impermissibility should be pretty clear to you from what you know about “zealous advocacy.” In this scenario, withdrawal from the representation of one of the parties would be mandatory, because advocating zealously for one friend could mean harming the case you’ve prepared for the other friend. Turning a divorce into a kind of zero-sum game would bring untold harm to at least one of the parties, if not both. The outcome of a divorce settlement would probably be skewed in the end. Negotiations mandate certain compromises that would not occur in an adversarial setting. 

EXAMPLE (2): Say you've just gone through a rough divorce and you’re asked to represent a client who in many ways closely resembles your ex-spouse. The physical resemblance kills you. The client makes the same demands, has the same manner of dragging out vowels when she speaks, and wears the same perfume – a cheap pharmacy-bought brand that makes your skin crawl. Must you withdraw?

EXAMPLE (3): A client fires you because you use harsh language when talking about the spouse she’s in the process of divorcing. You think there’s a way to work this out without abandoning the case; you realize that you underestimated the client’s sensitivities and you’re terribly sorry for any indiscretion. You especially do not want to lose the job because you need the extra funds to cover the credit card purchases you made this month on a new 150-gallon saltwater fish tank. The client, however, tells you to immediately remove yourself from her presence. 

Withdrawal is mandatory when a client discharges a lawyer. If the client feels she is unable to work with you, you have no choice but to pack up and give the client all her materials so that she can continue with her case. 

Permissive Withdrawal

According to Model Rule 1.16(b), a lawyer may withdraw from representation without any reason, if withdrawal can be accomplished without a “material adverse effect” on a client’s interests, or if:

1. the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
2. the client has used the lawyer’s services to perpetrate a crime or fraud; 
3. a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
4. The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
5. The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
6. Other good cause for withdrawal exists. See Model Rule 1.16(b).

Note that leave for withdrawal may be granted in these situations even if the client suffers a “material adverse effect” based on the withdrawal. 
Here are some examples:

1. You realize that your client is using your legal services to further a sophisticated scheme whereby he earns a kickback from the highway department every time a truck goes through a certain toll on the state line. You tell him to stop this business, but after reviewing the quarterly accounts, you find that he has not done so. You may withdraw, even if this results in an adverse effect on your client.
2. Your client insists that you do everything in your power to destroy his spouse in their divorce proceeding, even if it requires bringing his child into the fray. You realize the child’s life will be torn apart by such an action and the spouse will probably never recover. You find this insistence to be repugnant. As such, even if there will be adverse consequences, you are permitted to withdraw.
3. Your client is so distraught over her divorce that she never comes in to sign motion papers. She also continuously neglects to pay you for your services --- it’s as if she wants to wash her hands clean of the whole affair, even before it’s over. You find it absolutely impossible to continue while she refuses to cooperate. You have previously warned your client that you will withdraw if her behavior does not change. She again ignores your calls. You may withdraw. 

A common scenario in which a court will forbid withdrawal is when a trial has been postponed for a while and a lawyer tries to "jump ship" in the interim. If an unnecessary delay is caused because a party needs to find new counsel right in the middle of a trial or important hearing, the court will probably hold that that party will be unfairly prejudiced by the lawyer’s withdrawal. Also, if a lawyer delays a request to withdraw, chances are that a court will disallow the belated request. 

Client’s Right to Terminate Lawyer

There are almost no limitations on the client’s right to fire his attorney. The client can discharge the attorney at any time, whether or not he has good cause. See MacLeod v. Vest Transportation Co. 235 F.Supp. 369 (1964). The reason is that a client must have confidence in his attorney for the case to be properly advocated. 

Courts recognize that in the heat of battle, right before a trial, tensions usually ride high; and that clients’ agitations are sometimes taken out on their attorneys (and vice versa). Generally a court will hold that a client cannot discharge his attorney on the eve of a trial or on the eve of an important hearing, or during a trial or hearing. Courts are concerned that such firings would cause unnecessary cost and delays. 

There are few situations in the law where a client will not be allowed to replace a lawyer. In some states, an indigent party cannot fire a court-appointed attorney. The party may, however, request new counsel and hope that she is granted the request, or the party may decide to represent herself. Some states hold that if a dismissal is unjustified, the client will be forced to represent herself. See Comment [5], Model Rule 1.16. Such scenarios regarding indigent clients firing court-appointed attorneys are governed by state statutes, which vary across jurisdictions. 

States have different rules as well when it comes to issues of attorney dismissal by insane clients or mentally incompetent clients (eg. say an attorney represents a deranged killer who fires the attorney in a fit of rage). An attorney is generally required to make “special efforts” to help the client consider the consequences of a dismissal. See Model Rule 1.16, Comment [6]. If those efforts are unsuccessful, the attorney might try to petition the court for the appointment of what is known as a “guardian ad litem” whose responsibility is to help protect the client’s best interests. 

Issues involved in Selling a Law Practice

While on the topic of termination, it would be useful to briefly touch upon the conditions that must be met according to the ethical rules for lawyers who want to sell their practice and “hand off” clients to a successor attorney.

According to Model Rule 1.17:

1. The lawyer selling the practice must cease to engage in private practice in the jurisdiction or in the geographic area where his practice was located;
2. The practice must be sold in its entirety to another attorney or firm; 
3. Written notice must be given to all of the selling lawyer’s clients, providing information about:

• the proposed sale
• the terms of any changes in fees
• the rights of the client to retain counsel other than the successor to the practice
• the rights of the client to retrieve his or her files
• the rule that the client’s consent to the sale is presumed if the client fails to make an objection within 90 days. 

Protecting the Client’s Interests Upon Termination

As we have seen, withdrawal can adversely affect the interests of clients. It is essential that a withdrawing lawyer take reasonable steps to protect his client. See Model Rule 1.16(d). This might require the following:

• giving reasonable notice;
• allowing time for employment of other counsel;
• returning papers and property to which the client is entitled; and
• refunding any unearned prepaid fees. 

Note that it is generally forbidden to retain a client’s papers or property in order to force a client to pay a fee. See Academy of California Optometrists, Inc. v. Superior Court, 51 Cal. App. 3d 999 (1975). A lawyer who has trouble collecting fees has recourse in the courts or in alternative dispute settings. Extorting a fee from a client by holding their property hostage is entirely unethical behavior. 

EXAMPLE: Say your client is a real live wire, and after losing a motion to dismiss, he takes a swing at you. You cannot believe it, and you want no further part in his case. It’s in your best interests not to lose your cool, however, because a court might require you to continue the representation to allow time for the employment of another attorney.

Attorneys must remember that upon discharge – even when the discharge is performed without cause – duties are still owed to the client. The attorney may not reveal confidential information regarding the client, nor become embroiled in a conflicting representation. 

Lawyers petitioning a court for withdrawal have to be careful in wording their requests so as not to reveal confidences. It is important to use only words of general applicability, such as “my obligations as a professional make withdrawal necessary in this case”, rather than saying "my client has committed this negative act etc."