Reporter's Explanation of Changes
TEXT:
1. Paragraph (b): Clarify significance of permission to withdraw "without material adverse effect on the interests of the client"
No change in substance is intended. This proposal is intended to clarify that the lawyer may withdraw for any reason if "withdrawal can be accomplished without material adverse effect on the interests of the client," or, even if there will be such material adverse effect, if the lawyer has good cause, as set forth in paragraphs (b)(2) through (6).
2. Paragraph (b)(4): Alter requirement for permissive withdrawal when client and lawyer disagree over course of representation
a. Substitute "taking action" for "pursuing an objective"
The Commission recommends that a lawyer be permitted to withdraw from representation whenever a client is insisting that the lawyer take action that the lawyer finds repugnant or, in some instances, when the lawyer has a fundamental disagreement with the action proposed by the client, regardless of whether the action concerns the client's objectives or the means of achieving those objectives.
b. Substitute "with which the lawyer has a fundamental disagreement" for "imprudent"
Allowing a lawyer to withdraw merely because the lawyer believes that the client's objectives or intended action is "imprudent" permits the lawyer to threaten to withdraw in order to prevail in almost any dispute with a client, thus detracting from the client's ability to direct the course of the representation. Nevertheless, the Commission believes that a lawyer ought to be permitted to withdraw when the disagreement over objectives or means is so fundamental that the lawyer's autonomy is seriously threatened.
c. Change first word from "a" to "the"
This is a stylistic change to conform with the other subparagraphs of (b).
3. Paragraph (c): Remind lawyers of court requirements of notice or permission to withdraw from pending litigation
Some courts require only that the lawyer notify the court of withdrawal, for example, where a substitution of counsel is being made with the consent of the client. The Commission recommends following the practice of several states that have added the proposed first sentence in order to remind lawyers of their obligations under court rules.
4. Paragraph (d): Add reference to return of unearned fees and unexpended advanced expenses
This change corresponds to the change in Rule 1.15, which requires lawyers to segregate advanced fees and expenses in a client trust account.
COMMENT:
[1] The additional material addresses the question of when a representation is completed and cross-references other Rules, including those in which the services are limited in scope or intended to be short-term in nature. No change in substance is intended.
[3] Three changes are proposed. None of them is substantive. The first proposal is to add a sentence regarding the possibility that a court may require either approval or notice before a lawyer withdraws from pending litigation. The second is to substitute "request" for "wish" for reasons of style. The third is to add a cross-reference to Rules 1.6 and 3.3 regarding any colloquy with a court requesting an explanation for the lawyer's request to withdraw.
[6] These changes are proposed in light of the changes made in Rule 1.14.
[7] The proposed change tracks the proposed change to paragraph (b)(4).
[9] The Commission recommends adding a cross-reference to Rule 1.15 on client property. It also recommends that the last sentence be deleted because its meaning is unclear.
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