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ER 1.16 Declining or Terminating Representation

The Standard

There are several situations in which a lawyer may terminate representation early and a few in which a lawyer must do so. Regardless of the circumstances, including discharge by the client, the lawyer must protect the client’s interests when disengaging, and avoid prejudicing the client.

The Limitation

When a motion to withdraw is required by procedural rules, the tribunal may require the lawyer to continue with the representation, notwithstanding good cause to terminate early. When termination is ethically required, the lawyer may need to seek review of any denial of a motion to withdraw.

FAQs

Do I have to accept any client who wants to hire me?

No. In fact, at times, due to workload, a conflict, or lack of experience, the ERs require you to decline representation. Trust your gut regarding “red flag” clients: clients who have had more than one prior lawyer for the matter; have filed bar charges against prior counsel; have filed malpractice actions; or are demanding and/or rude.

If I decline representation after a consult, are there any further steps I should take?

Send a non-engagement letter. Add the prospective client to your conflicts database.  Maintain the prospective client’s confidence. See ER 1.18.

Can the client fire me?

Subject to liability for your fee, yes, at any time and for any reason. If you anticipate a fee dispute, a bar charge, a legal malpractice claim, etc., provide a robust disengagement letter.

Can a diminished capacity client fire me?

If severely diminished, the client may lack capacity to fire you, and the discharge may be seriously adverse to the client’s interests. Make a special effort to help the client consider the consequences, and consider any reasonably necessary protective action as provided in ER 1.14.

When must I withdraw from representation?

(1) When ongoing representation will result in violation of the ERs or other law; (2) when your physical or mental condition materially impairs your ability; and/or (3) when the client fires you.

Do I need court approval to terminate/withdraw?

In most matters that have been filed before a tribunal or agency, yes, you do. This is governed by procedural rules applicable to the type of proceeding.

What information may I include in my Motion to Withdraw, so the Court will grant it?

Because of your duty of confidentiality and your duty to safeguard the client’s interests when withdrawing, your motion to withdraw must be “quiet,” stating only that “Professional considerations require termination of the representation.” If the tribunal seeks more, narrowly tailor your disclosures and take all available protective measures, including disclosing in camera, ex parte, under seal, and/or with a different judge. See Comment [3] to ER 1.16 and EO-20-0001. You may need to professionally remind the tribunal of your ethical obligations here, and that your avowal as to professional considerations is enough. Maricopa County Public Defender v. Super. Ct., 187 Ariz. 162 (App. 1996). Further, consider special action of any rulings that will prejudice the client or require you to continue representation when ER 1.16(a) requires termination.

If a client fires me in a litigation matter, do I have to do anything after that point?

Yes, your representation of the client continues until the tribunal substitutes new counsel and/or grants your withdrawal. You also must take reasonable steps to protect a client's interests and you must promptly provide/transfer the client’s file. 

May I bill the client for transitioning the file to successor counsel?

Yes, if it is reasonable. However, never hold the client file hostage over your legal bill.

May I keep a copy of the client file after termination?

Yes, and your carrier likely requires a period of retention. But you must provide, without charge, one complete copy of the file to the client or successor counsel, as client directs. Your copy is at your expense. The file is client property and the client is entitled to all substantive contents, including your work product. See Comment [9] to ER 1.16 and EO-19-0009.

What if I am withdrawing over an issue of candor to the tribunal?

In this instance, your ethical duty of candor to the tribunal may trump your duty of confidentiality. See EO-20-0007. The best practice in these sticky situations is to seek ethics advice.

Do I need a file retention policy?

Yes, and it should be disclosed to the client at the engagement level. In most practice areas, keep files for at least five (5) years, or as recommended by your carrier. Certain practice areas, such as estate planning or capital cases, will require longer retention periods.

May I withdraw over nonpayment of my fee?

Yes, if you’ve reasonably warned the client and have the requisite court approval. Stay on top of A/R to limit situations where you are doing a pro bono trial you didn’t plan on.

If my client accuses me of improper conduct, files a bar charge against me, and/or files a legal malpractice action against me, must I withdraw?

Often this presents a “personal interest” conflict/breakdown in the attorney-client relationship warranting early termination of the representation. In the unlikely event that there is no significant risk that your independent professional judgment is compromised, you may continue with the representation. But most of the time, it is best to withdraw in these situations.

When transitioning the client to successor counsel, what disclosures may I make to successor counsel about the client and the matter?

Often, transfer of the client file and a communication to new counsel about the status of the matter is impliedly authorized to smoothly transition the representation. However, any doubt about whether specific information should be disclosed to successor counsel should be resolved by obtaining the client’s consent to the disclosure. This includes situations in which successor counsel, or prospective successor counsel, seeks input directly from the withdrawing lawyer. See EO-20-0001.

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