Figuring Out How and When to Withdraw from Representing a Client
In the first of a two-part series, Eric Cooperstein walks attorneys through the process of when and how to withdraw representing a client—and how to do it ethically.
By Eric T. Cooperstein
Perhaps you have heard this formula for improving your law practice: identify who your best clients are and go get more of them, and identify your worst clients and fire them. Lawyers put up with a great deal of abuse from some of their clients, including angry outbursts, unreasonable demands, unpaid bills, insults, threats, etc. Yet my experience has been that most lawyers’ sense of loyalty to their clients is so great that they resist withdrawing, often to the lawyer’s detriment. Instead, the lawyer avoids the difficult client and, in the short term, avoids the problem by not responding to communications or not working on the client’s case. You can guess where that leads. Ironically, it is more often the failure to withdraw than withdrawing at an inappropriate time that triggers an ethics complaint.
Nevertheless, the rules on permissive withdrawal— where the lawyer chooses to get out—are a quagmire. Rules 1.16(b) and (d) are filled with terms that sound good until you try applying them to your particular facts, such as “material adverse effect,” “reasonable warning,” “unreasonably difficult,” and “reasonably practical” (some form of “reasonable” seven times in Rule 1.16!). There are many shades of gray and no clear safe harbor for avoiding an ethics violation. Maybe that is why lawyers continue to represent clients longer than they should. Here is a rough guide to getting out.
Plan Your Move
Rule 1.16(b) has seven subparts that suggest situations in which lawyers may choose to withdraw. In my view, the first subpart, “a lawyer may withdraw . . . [if] withdrawal can be accomplished without material adverse effect on the interests of the client,” is most important and should be read in contrast to the remaining parts. If I was King, I would restructure the rule to read:
(b)(1) Where there is no material adverse effect on the client, a lawyer may withdraw at any time.
(b)(2) Where the withdrawal will have a material adverse effect on the client, the lawyer must have a good reason, such as . . .
That first subpart essentially acknowledges that a lawyer’s withdrawal will likely have some adverse effect on the client but as long as that effect is not material, go for it. A “material” effect is generally thought of as an effect that will cause some kind of prejudice greater than the inconvenience for the client of changing lawyers.
Rule 1.16(b)(1) provides most lawyers wide latitude in deciding to withdraw as long as they plan ahead, which may mean not kidding themselves that the client will undergo a miraculous personality transplant and the relationship will get better.
Rule 1.16(b)(1) provides most lawyers wide latitude in deciding to withdraw as long as they plan ahead, which may mean not kidding themselves that the client will undergo a miraculous personality transplant and the relationship will get better. Transactional lawyers generally have an easier time of this because they may not face as many firm deadlines as litigators but, no, an estate planning lawyer probably cannot say there is no material adverse effect in withdrawing from a client who is on their deathbed. Ditto for a lawyer who wants to withdraw on December 30 from a transaction that must be completed by December 31 to avoid tax consequences.
For state court litigation, most often a scheduling order and the status of any pending motions will be your guide. Discovery deadline two months away and no motion hearings scheduled? Hasta la vista. Motion hearing tomorrow or summary judgement response due next week? No and no.
It also matters what jurisdiction you are in. In state civil matters, where only notice is required, a withdrawal where there is no material adverse effect will not likely be scrutinized. Where withdrawal is permitted only on motion, and especially in federal court, lawyers should assume that the lack of a material adverse effect will not be sufficient for the court to grant the lawyer’s withdrawal motion. Just because your withdrawal is ethical does not mean the judge has to let you out.
Balancing Act
Even when a withdrawal may have a material adverse effect on the client, the lawyer’s fate is not sealed. The remaining subparts of 1.16(b) set forth situations in which there may be some material adverse effect caused by the lawyer’s withdrawal, but the circumstances are such that the lawyer should be permitted to withdraw. The clearest examples of this balancing test are stated in 1.16(b)(2) and (3): when the client has used the lawyer’s services to engage in past or ongoing criminal or fraudulent conduct. It is rare but one can imagine that if a lawyer discovers the day before trial that she has been used to further the client’s criminal activity, withdrawal might still be appropriate.
In contrast, Rules 1.16(b)(4), (5), and (6) are more commonly used and more fact-intensive. They are also confusing because similar concepts seem to appear in multiple subparts and dissimilar concepts appear within the same subpart. Bad client behavior appears in all three sections. Failure to pay the lawyer’s fees arguably appears in both (b)(5) and (b)(6). The financial burden on the lawyer and the client’s bad behavior are combined in (b)(6). The comments to the rule do not shed any light on its organization or the meaning of the terms used. The rules provide good material for lengthy law review articles but little help to lawyers at their wits’ end.
To boil it down, a lawyer can withdraw if the client behaves offensively toward the opposing party or third parties ((b)(4)); if the client fails to cooperate with the lawyer, perhaps by failing to communicate with the lawyer or not providing information to allow the lawyer to respond to discovery ((b)(5)); or if the client treats the lawyer or their staff abusively ((b)(6)). Note that part 1.16(b)(5) is the only provision that requires the lawyer to give a client a prior warning that the lawyer will withdraw. The rule doesn’t say the warning has to be in writing, but I would not bet on the client’s willingness to confirm later that you warned them orally.
To boil it down, a lawyer can withdraw if the client behaves offensively toward the opposing party or third parties ((b)(4)); if the client fails to cooperate with the lawyer, perhaps by failing to communicate with the lawyer or not providing information to allow the lawyer to respond to discovery ((b)(5)); or if the client treats the lawyer or their staff abusively ((b)(6)).
If a client owes you money for your fees or refuses to fund the expenses, such as expert fees, that will be necessary to pursue their case, lawyers may rely on (b)(5) (with advance warning to the client of your threatened withdrawal) or (b)(6), that there will be an “unreasonable financial burden” on the lawyer. Realize that if you withdraw because of unpaid fees, you may never get paid.
None of these are get-out-of-ethics-jail free cards. By the time a lawyer gets around to deciding whether to withdraw, the lawyer may be emotionally compromised. In the lawyer’s subjective view, the client is intolerable and the lawyer simply refuses to continue with the case. But an ethics investigation will examine the facts objectively. An unpaid bill of $1,000 may be meaningful to you but may not impress an investigator.
More importantly, Rule 1.16(d) implicitly sets up a balancing test by requiring a lawyer to give “reasonable notice to the client” and “allowing time for employment of other counsel.” Even if you have a really good reason for withdrawing, if you do so too close to a critical deadline or event in the client’s case, you may violate Rule 1.16(d), which is far more commonly cited as a basis for discipline than Rule 1.16(b). A client’s bad behavior (threatening you or your staff, failing to cooperate) is likely to provide better justification for withdrawing close to a deadline than a financial reason.
To figure out on which end of the ethical teeter-totter you sit, a fair rule of thumb might be to consider how long it would take for another lawyer to get up to speed on the matter before the upcoming deadline. It will take far less time for a lawyer to digest a file and prepare for a one-day trial than a two-week trial. It will be less important that the client may be unable to hire a new lawyer because the case is terrible or that no one wants to be the client’s fourth lawyer.
Once you have analyzed the situation, taken a deep breath, and decided to withdraw, the next step is to explain your decision to your client, which will be the subject of my next column.
Read part two of Eric’s column: How to Draft a Withdrawal Letter
Eric T. Cooperstein, the “Ethics Maven,” defends lawyers and judges against ethics complaints, provides lawyers with advice and expert opinions, and represents lawyers in fee disputes and law firm break-ups.