Ethics and Professional Responsibility
Need Court Approval for Withdrawal and Court Won’t Act? Consider Mandamus
By Keith R. Fisher
Model Rule 1.16(b) enumerates the bases upon which a lawyer may seek to withdraw from representing a client. These include (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer’s services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) 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; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists.
Sometimes, as noted in Model Rule 1.16(c), permission of a tribunal must be obtained—typically where a lawyer seeks to withdraw from representing the client in pending litigation. Seeking such permission is not without risk, as the lawyer must continue representing the client if ordered to do so notwithstanding that solid ethical grounds exist for terminating the relationship.
But what if months go by and the tribunal does nothing? Inability to withdraw is not only discomfiting for the lawyer but can have a significant adverse impact on the client’s best interests. Failure by a court to rule on a withdrawal motion is obviously not an appealable order, so the only recourse is mandamus.
Recently, a unanimous decision by the Court of Appeals of Texas, while not ruling on the merits of a withdrawal motion and declining to create a bright line test, did grant a writ of mandamus ordering the trial judge promptly to decide the withdrawal motion. The court noted Texas precedent for the proposition that six months is sometimes regarded as a reasonable time for a judge to decide a motion and delays in excess of that period may warrant mandamus relief. The key facts identified by the court were (A) that the lawyer had filed a motion to withdraw ten months earlier, (B) that hearings (at least three, and possibly four of them, apparently!) had been held on the motion, but (C) six months had elapsed since then without a decision. Those facts, in the court’s view, “present[ed] an unreasonable time warranting mandamus relief.”