January/February 2021

Ethics

Withdrawing Artfully and Safely

Lucian T. Pera

Every lawyer needs to know how to withdraw from a representation.

Neither vast knowledge nor repeated practice is required. It’s not really that complicated. But there are nuances. Experience has taught some practitioners techniques that can make it safer and easier.

Why devote an entire column to such a pedestrian chore?

Simple. In recent years, some ethics lawyers have noted what looks like an increase in the frequency of lawyers getting into disciplinary trouble from how they withdraw—almost always completely unnecessarily. Lawyers can do better, with just a little thought.

When Must We?

When the possibility arises, turn to the ethics rules. Every time I need to withdraw, or have a client who does, I pull out the proper jurisdiction’s version of ABA Model Rule 1.16. First, decide whether you must withdraw.

All lawyers get fired occasionally. Or conflicts of interest arise to which we cannot, or do not choose to, seek a waiver. ABA Model Rule 1.16(a) also requires we withdraw when a client insists we do something illegal or unethical. When that happens, we must withdraw.

When May We?

If you’re not required to withdraw, consider whether you should and may withdraw.

Rule 1.16(b) sets out several grounds for permissive withdrawal. First, we may withdraw at any time, so long as we can do so “without material adverse effect on the interests of the client.”

The Rule also establishes other permissive grounds for withdrawal, such as a client not paying an agreed fee or when a client insists on taking action the lawyer “considers repugnant or with which the lawyer has a fundamental disagreement.”

While there’s little express law on this, the fact that a client has to pay for new counsel and to get them up to speed is not generally “material adverse effect.” But there’s an important caveat, especially in litigation.

A Word on Lawyer Wellness

Over the years I’ve counseled lawyers, one thing has become clear: Quite frequently, firing a troublesome client can contribute immensely to lawyer well-being.

By the time a lawyer has thought enough about whether they might fire a client to consider whether they ethically may—that’s when they call me—their gut has already concluded they should. Their gut’s often right.

Bad things happen to good lawyers who stay in difficult client relationships. Frequently, wise loss prevention recommends a lawyer quit a client who refuses to follow advice or argues over every bill. But as much as I love good loss prevention, I’m also a fan of lawyer mental health. Firing a client who’s making a lawyer lose sleep improves lawyer mental health significantly.

Ask the Court

A lawyer appearing before a tribunal almost always must seek permission to withdraw. Many courts have their own local rules for how; be sure to consult those.

If you represent a client in litigation, you must think carefully about whether the court will allow it and whether imminent events make it imprudent.

Courts impose additional duties on lawyers as counsel of record, including duties to the court, so courts may sometimes deny withdrawal.

The nearer to trial—or a week’s worth of crucial depositions—the less likely a court is to allow withdrawal. Further, the nearer to trial, the more likely a client may accuse a withdrawing lawyer of abandoning them.

Out of Court

If you are not counsel of record in court, withdrawal may be simpler.

Communicate clearly to the client that you are withdrawing. Tell them why. Tell them when you stopped work, the detailed status and whether they need another lawyer. And think about whether you need to inform any third parties. Confirm this in writing.

In litigation, the choreography is a bit more complex.

Lawyers in Trouble

Why do lawyers get into trouble for withdrawal? Rare as it is for lawyers to be sued for abandonment, it’s not rare to get into disciplinary trouble by saying too much as they withdraw.

A lawyer gets fired or quits. She’s unhappy with the client. She says something she shouldn’t in a motion to withdraw filed in court. The bar disciplines her for violating the confidentiality rules.

Cultivating Silence

To aid in your silence, consider drafting the motion to withdraw first or at the very same time you draft the client letter informing them. Be fulsome and accurate in your client letter to protect against client misunderstanding. But in the motion, say as little as possible.

Pull out Rule 1.16 and use its very language in your motion. Establish the legal grounds for the motion. Then stop.

In your motion, ask specifically that the court give the client time (30 days? 60 days?) to retain and have new counsel appear. Ask that the case be stayed during that time.

Do pay careful attention to the court’s local rules, if any, on withdrawal.

Recommend New Counsel

Consider the (sometimes impractical) possibility of recommending new counsel to the client.

Sometimes, it might make sense to give the client a list (not just one name) of possible new counsel. The more likely they are to get new counsel, the less likely they are to complain about or be injured by your withdrawal.

Indeed, the client may find new counsel, and substitution of counsel is a much easier sell to the court than withdrawal.

Write the Client

Talk with the client about withdrawal and send your client letter. Enclose a draft motion to withdraw. Say you plan to file it, in that form, by a certain date. Don’t ask permission; inform the client you are doing so.

Do ask for consent. If they consent, add that to your motion. If they don’t, add that.

Fire Away

File your motion and serve all parties, plus the client.

Set it for hearing and be sure to inform your client, especially if they oppose your withdrawal or have not responded. At (or outside) any hearing, be very sensitive to what you say. Say as little as is necessary to accomplish withdrawal. No casual chatter with opposing counsel about how difficult your client has been, or how delinquent in paying.

After the Fact

When (with luck) your motion is granted, be sure your client has a copy of the court’s order, as well as contact information on other counsel. Do inform opposing counsel (and possibly the court or clerk) of your client’s contact information, so they may be in touch with your client directly.

Do return any client property, including unearned fees and money in trust.

Be prepared to cooperate in transitioning the matter, including providing the file. You probably have some obligation to answer questions of the client or successor counsel, to some limited extent, to allow them to carry on.

Best of all, if you can accomplish all this safely, you may be able to sleep a little bit more peacefully with one less name on your client list.

Lucian T. Pera

Partner

Lucian T. Pera is a partner in the Memphis, Tennessee office of Adams and Reese LLP. He counsels lawyers, law firms, clients and those who do business with lawyers and law firms on ethics and professional responsibility issues. He is a past president of the Tennessee Bar Association and a past ABA treasurer. Lucian.Pera@arlaw.com

Entity:
Topic: