May 2010 • Volume 98 • Number 5 • Page 240
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Attorney and Client
Avoiding Withdrawal Pains
You've had enough of the Client from Hell. Or maybe the Client from Hell fires you. In either case (or any number of others), you need to withdraw from the representation. The good news - you almost certainly can. But make sure you do it properly.
A pressing concern of most lawyers in private practice is getting more clients. Lawyers are in business to help people with their business, after all. More clients should mean more work and, therefore, more income for the industrious lawyer.
But there come times in the lives of all lawyers when it's difficult or impossible to represent one or more clients effectively. Sometimes it's the client, and sometimes it's the lawyer. When serious difficulties arise, a lawyer may need to withdraw from representing a client.
Get a group of lawyers together and before long you'll start hearing war stories about clients with problematic behavior who had to be - or should have been - cut loose. You're guaranteed to hear about clients who call their lawyers' offices multiple times a day for no good reason, taking up time that the lawyer and support personnel needed to spend on productive work for her and other clients. You'll hear of other clients doing the opposite, ceasing to respond to their lawyers' correspondence or phone calls.
Still other clients fail to apprise their lawyers of important details relating to their cases. Some think their lawyers' job is not only to seriously wound and, if possible, destroy the other side, but also to help them commit perjury or fraud. Some scream at their lawyers, refuse to accept generous settlement offers, or file ARDC complaints with no grounds.
And all lawyers in private practice will probably have tales to tell about the perennial classic of client bad behavior: failing to pay the lawyers' bills. All of these circumstances justify lawyers withdrawing from representing those clients.
Other circumstances also justify or require withdrawal. Clients may fire their lawyers, and when they do, the lawyers must stop trying to represent them. And lawyers whose physical or mental health compromises their ability to represent their clients effectively also must withdraw from those clients' cases.
Even when clients are behaving badly, even when clients fire their lawyers, and even when lawyers' health is detrimentally affecting their clients' representation, it can be difficult for lawyers to separate themselves from those clients and cases.
Conscientious lawyers may feel a responsibility to see a matter through to the end, for example, or may be emotionally involved in and feel strongly about the case. Lawyers who have agreed to be paid out of a case's final proceeds may want to remain involved to make sure that they get paid for the work they've put in for the client. And lawyers with health issues may not realize or want to admit that they are no longer able to represent their clients effectively. But lawyers must, for their sakes and for their clients', understand how and when it's permissible, appropriate, or mandatory to disengage from clients.
In Illinois, RPC 1.16 governs declining or terminating representation of a client, including motions to withdraw. The rule, which, along with the rest of the Illinois Rules of Professional Conduct 2010, was effective January 1, 2010, provides for mandatory withdrawal from representation in subsection (a):
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct 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.
Subsection (b) sets forth a variety of circumstances under which it is permissible, though not required, for the lawyer to withdraw:
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(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.
Subsections (c) and (d) place additional permissions, conditions and restrictions upon withdrawal:
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
Following the rule's text are 10 official comments that explain aspects of the rule, offer suggestions to the lawyer presented with special circumstances such as a client disputing the withdrawal or the client with seriously diminished capacity, and provide guidance to judges who are considering motions to withdraw.
Beware the stealth conflict of interest
St. Louis lawyer Michael P. Downey advises lawyers and accountants on legal, ethical, and risk management issues and co-writes The Ethical Quandary, a legal ethics and litigation blog sponsored by his firm at http://blog.hinshawlaw.com/theethicalquandary/. He says it's important for lawyers to understand that under the circumstances set forth in RPC 1.16(a), they have no option other than to withdraw. Even when the rule's conditions are clearly present, he says, lawyers and even some judges are often uncertain whether withdrawal is proper.
Downey says he's seen cases where lawyers have neglected to withdraw even when subsection (a)(1) of the rule requires them to do so: when continuing representation of a client will result in a violation of the Rules of Professional Conduct or other law.
The emergence of a conflict of interest, he says, is the most frequent context in which he sees lawyers making missteps under this subsection. "Lawyers commonly try to navigate things without getting out, but that's tough to do."
Downey provides a typical example of a conflict of interest arising that requires the lawyer's withdrawal. "Let's say you are representing two people in a lawsuit and you have learned a lot of confidential information from both of them related to the lawsuit." But at some point the two begin arguing with each other. They may even start threatening to bring cross claims against each other - a frequent occurrence, Downey says. Under those circumstances, "it's very evident that they now have materially adverse interests."
Unfortunately, says Downey, lawyers often think that they can stay in the case and represent one of the clients but not the other. The odds are, he says, that RPC 1.9, Duties To Former Clients, will require withdrawal from representing either client. That's because the rule prohibits a lawyer who's formerly represented a client from representing another person in the same or a substantially related matter in which the former client's interests are materially adverse to the other person unless the former client gives consent.
"You can't do it unless you've got the consent of one of the clients. Even if you terminate one of them, and that person becomes a former client, you're still representing a person with materially adverse interests in the same or substantially related matter, so you've still got a [RPC] 1.9 problem."
"You're fired" means "it's over"
Downey also sees lawyers making the mistake of thinking that they may remain counsel of record in a case even when their clients have discharged them under subsection (a)(3). "Sometimes, lawyers seem to think that if your client fires you, you can keep representing the client, particularly in a contingency fee case where your client owes you money. You can't - it's over."
Remember, Downey says, that the lawyer-client relationship is both a fiduciary relationship and a principal-agent relationship in which the client is the principal and the lawyer the agent. As long as the agency relationship exists, the agent must follow the principal's instructions. While following those instructions is, of course, subject to the lawyer's ethical rules, when the client fires the lawyer, the law of agency is in accord with the Rules of Professional Conduct: the lawyer must cease representation.
But what about those earned but unpaid fees? Understand that recovery is separate from representation, Downey says. If the lawyer is entitled to recover fees, both lawyers and judges, who may feel protective of the lawyer's interest in getting paid, should remember that avenues exist for the lawyer to do so.
Downey points out that the lawyer may assert a lien, may file a claim based on quantum meruit, or may otherwise negotiate a recovery with the client. What the lawyer may not do, he says, is to continue to appear in court attempting to represent the person.
Mentally disabled lawyers
Complying with subsection (a)(2) of the rule, requiring lawyers to withdraw when their physical or mental condition materially impairs their ability to represent the client, may be the most difficult, as a conceptual matter, for lawyers. After all, few people, least of all the overachievers who abound in the legal profession, want to publicly acknowledge any limitations on their abilities to do their work.
Additionally, Downey points out, lawyers suffering from dementia, for example, or those who are in denial as the result of substance abuse, may not even realize their conditions have compromised their ability to represent clients effectively. But the rule leaves lawyers who cannot represent their clients effectively as the result of their health no choice but to withdraw.
"Lawyers have an obligation to provide competent and diligent representation. If they can't provide it due to health, mental ability, or the like, they have an obligation to get out," Downey says, though under some circumstances it may be permissible for them to remain involved on a limited basis while bringing in co-counsel. "The rule is a reminder for lawyers that they're human. They must look out for the interests of the client."
You can withdraw without cause (usually)
Turning to RPC 1.16(b), which governs the circumstances under which lawyers may, but need not, withdraw from a client's representation, Downey says, "A mistake lawyers often make is thinking that they can't withdraw from a case without cause. That's wrong."
Current RPC 1.16(b)(1), Downey ob-serves, explicitly permits the lawyer to withdraw for any reason or even no reason at all, as long as withdrawal will not result in a material adverse effect on the client. That positive language contrasts with the negative terminology of the predecessor rule, which prohibited withdrawal except under a variety of enumerated circumstances.
The change in RPC 1.16(b)(1), which, like the rest of the rule, matches the language of the ABA's Model Rule 1.16, is a good change, Downey says, because it allows for a clear path for withdrawal even if some "good" cause as defined by the rules is not present. And subsections (2) through (7) of RPC 1.16(b) provide more specific circumstances in which lawyers are permitted to withdraw. "The tough situation," Downey cautions, "is that you have to get court approval," as noted in RPC 1.16(c).
Whatever the ground, file the motion early on, says Downey, and the likelihood of the court's granting the motion and giving the client 30, 60, or 90 days to obtain new counsel is far greater than if the lawyer waits until the case is in its advanced stages. At that point, he says, a court may deny the motion outright.
Additionally, he points out, lawyers who tolerate problematic behavior from their clients for extended periods may inadvertently exacerbate an already less than ideal relationship with their problem clients, who may understandably be shocked and upset at receiving a motion to withdraw shortly before trial.
Withdrawal-motion drafting tips
Downey offers suggestions for drafting motions to withdraw. Be wary of including too much detail in the motion, he says, to avoid revealing sensitive or preju dicial information to opposing counsel or, unnecessarily, to the court.
But, he continues, have your grounds documented as well as possible in your file. "It's often OK to file a motion, appear, and say to the court I'll get into de tails if the court wishes, but I can't do it with opposing counsel here."
One diplomatic but effective wording for a motion premised on sensitive grounds, Chief Judge James Holder-man of the federal district court for the Northern District of Illinois suggests, might be "I have an ethical obligation not to represent this client." If the court permits or directs, Downey says, you can then reveal to the court in chambers only as much as is necessary for the court to understand the need for you to withdraw.
"If you're going to discharge someone for nonpayment, you need to make sure you've given the client a clear warning." To that end, he says, "Have a letter in your file that says you haven't paid me in so many days, this amount is due, we need to work out a payment plan and I need to receive at least partial payment in 30 days or I'm going to withdraw."
If the client still hasn't paid you two months later, he says, you can show the court that you made it very clear what the client needed to do. "The judge is much more likely to say, 'You've done what you needed to do for me to understand that this is a reasonable request that should be granted.'"
Trouble is almost guaranteed to arise, Downey says, when the lawyer continues to represent the client despite nonpayment or other bad behavior and moves to withdraw late in the case or without sufficient warning to the client. "Courts want to see that you've worked with your clients and given them fair warning before moving to withdraw."
Adds ISBA member TJ Thurston, who recently started Lawyers1st, a coaching and mentoring company for lawyers in his home state of New Jersey, "Make sure you have proof of serving the client with the motion to dismiss. Most judges won't grant the motion unless you show up with the executed 'green card' from the Postal Service."
Making sure clients are protected
Downey acknowledges that it's not unusual, even when lawyers have valid and compelling grounds for withdrawal stated in RPC 1.16(a) or (b) and even when they have filed their motions in a timely fashion, for judges to decline to allow them to withdraw until their clients obtain new counsel. A judge may, for example, set the case over for 30 days for a status hearing to see if the client has obtained new counsel.
Holderman explains why he may not allow a lawyer to withdraw immediately. "I try to keep the lawyer in the case until another lawyer enters an appearance, so that we can minimize any adverse effect to the client." If the client doesn't appear for the hearing on the motion and no new lawyer has entered an appearance, Holderman will typically enter an order requiring the client to appear in court the following week along with the lawyer seeking to withdraw. At that time, if the client does not appear after the lawyer has attempted to secure the client's appearance, Holderman usually will grant the motion to withdraw.
If the client does show up at the second appearance, Holderman uses that occasion as an opportunity to delve into the reasons for withdrawal, if necessary, and to exhort the client to retain new counsel posthaste. He also explores the actions of the lawyer seeking leave to withdraw to ascertain whether the lawyer has done everything possible to minimize any negative consequences to the client from not having a lawyer. Under some circumstances he may ask the withdrawing lawyer whether he or she will cooperate with a new lawyer retained by the client, whether to emphasize to the client through the lawyer's affirmative response that the client's representation will not suffer or to emphasize to the lawyer that such cooperation is necessary regardless of a less than cordial relationship with the soon-to-be former client.
"[T]ake a deep breath"
Even after a lawyer has received leave to withdraw from a case, his or her responsibilities may not be over. ARDC senior counsel Peter Rotskoff comments on the interplay of RPC 1.16(a)(1), requiring the lawyer to withdraw where continued representation would result in a violation of the Rules of Professional Conduct, and RPC 3.3, Candor Toward the Tribunal.
Comments 10, 11, and 15, Rotskoff notes, explain that "Sometimes withdrawal is not enough. There are circumstances where the lawyer must take remedial action to comply with RPC 3.3."
Those circumstances include the lawyer's realizing that the former client has testified falsely. If remonstrating confidentially with the client, for example, does not elicit cooperation, the lawyer may have to disclose information that would otherwise be protected under RPC 1.6, governing the duty of lawyer-client confidentiality. "The duty of can dor toward the tribunal trumps everything else," says Rotskoff.
"Withdrawals can be hard," Downey recognizes. "You've really got to think it through and be careful. It's a situation where you shouldn't do it by yourself." Talk to someone who's not connected with the matter and isn't emotionally involved about whether to withdraw and how to couch your motion, Downey recommends.
"Your partner may not be the best wise counsel in this circumstance," he says, suggesting that a friend outside of your law firm may be a better choice. "Ask them whether it's appropriate. Run the motion by them."
Whatever happens, Downey says, remain professional, even in the face of invective from your client before the judge and spectators in a crowded motion call. "Grab a table, hold tight, take a deep breath, let it pass. And then point out to the judge that the client has just demonstrated why you must be given leave to withdraw."
- SCR 13 governs motions to withdraw in the state courts of Illinois. The Supreme Court Rules, including the Illinois Rules of Professional Conduct 2010 as well as the predecessor rules, are available on the Web site of the Illinois Courts at http://www.state.il.us/court/SupremeCourt/Rules/default.asp. Motions to withdraw from cases in federal courts may be subject to local rules. In Illinois, Local Rule 83.17 of the Northern District of Illinois and Local Rule 83.1(g) of the Southern District govern motions to withdraw in those courts.
- ISBA First Assistant Counsel Melinda Bentley urges withdrawing lawyers
to review two ISBA Advisory Opinions on Professional Conduct from January 1995 concerning the lawyer's duty to provide file or investigative materials to a former client, Nos. 94-13 (January 1995), Lawyer's Files; Duty to provide or disclose lawyer's investigative materials to client, and 94-14, Lawyer's Files; Duty to return client papers. ISBA ethics Advisory Opinions are available to members at http://www.isba.org/ethics
- A must-read for any lawyer in private practice is the article by Karen J. Dilibert (now Erger) from the November 2001 IBJ, How to Spot the Client from Hell. She focuses on "the practical necessity of turning away a few prospective 'clients from hell' who are likely to wreak havoc on your sanity, your practice, and your claims history."
- The Ethical Quandary http://blog.hinshawlaw.com/theethicalquandary/, a blog sponsored by the law fi rm of Hinshaw and Culbertson LLP, is cowritten by Hinshaw lawyers Michael P. Downey, David Elkanich, David Sorensen, and Dayna Underhill.
- The ABA Center for Professional Responsibility provides links to a variety of ethics resources, including the Model Rules of Professional Conduct, at http://www.abanet.org/cpr/.