June 2016

Maybe It's Time We Go Our Separate Ways
A Quick Look at Terminating the Attorney-Client Relationship

By Patrick Kearns

Wilson Elser Moskowitz Edelman & Dicker LLP

Like any relationship, the attorney-client relationship is complex and occasionally, things may take a turn for the worse. If problems develop between you and your client, it may be advisable to withdraw as counsel and terminate the relationship.  Indeed, depending on the circumstance, you may be required to terminate the relationship. Of course, terminating the attorney client relationship requires more than simply never calling your client again, or perhaps “un-friending” them. Withdrawal will require serious consideration; analysis; compliance with the Rules of Professional Conduct and the State Bar Act; and one way or another, you’ll likely need to obtain an Order from the court authorizing you to withdraw.

But how do you know when it's appropriate to withdraw in the first place? The Rules of Professional Conduct provide guidance. Rule 3-700 describes in detail when withdrawal is permissible and when it is required. Whether withdrawal as counsel is permissible or mandatory however, the rules require that you first take certain steps to ensure your client will not be prejudiced by the withdrawal. Rule 3-700(A)(2) states that an attorney “shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules.” This means, among other things, you’ll need to refund any unearned fees, comply with any protective orders, and return the client’s file on request. It also could mean, regardless of the reason, the court may not permit you to withdraw, for example, on the eve of trial.

Rule 3-700 sets out a variety of scenarios where withdrawal as counsel is mandatory. Notably, the very first basis for mandatory withdrawal is where your client is taking a position in litigation or on appeal without probable cause and for the purpose of harassing or maliciously injuring someone. (3-700(B)(1).) Practically speaking, this means that if your client is taking a bad-faith position in a lawsuit, you may be subject to discipline if you do not seek withdrawal. Mandatory withdrawal is also required if the representation will result in a violation of the Rules, or of the State Bar Act. (3-700(B)(2).) This is something of a “catch-all,” which may provide for mandatory withdrawal in a situation, for example, where an unwaivable conflict develops.

The list of grounds for permissive withdrawal is longer and perhaps more nuanced. In addition to repeating the “big-ticket” items set forth above as a basis for permissive withdrawal (see, 3-700(C)(1)(a)-(c) and (C)(2)), an attorney may also seek permissive withdrawal, for example, where a client insists on taking a position which — although perhaps not illegal or contrary to the rules — is nevertheless contrary to the attorney’s advice and judgment. (3-700(C)(1)(e)). Subsection (C)(3) allows for permissive withdrawal in a scenario where you can’t get along with co-counsel and the interests of the client are best served by your withdrawal. Or where a client breaches an agreement to pay your fees. (3-700(C)(1)(f)). We are, after all, in business.  

Despite the lengthy list of reasons why withdrawal may be permissible however, not every scenario will perfectly fit in one of the identified categories. Rule 3-700 resolves this by providing some broader allowances; e.g. Subsection (C)(1)(d) states withdrawal may be permitted if the client “by other conduct renders it unreasonably difficult for the member to carry out the employment effectively.” The “easiest” way to withdraw however? Your client “knowingly and freely assents consents” to the termination of the relationship. (3-700(C)(5).) While this may not always be possible, regular and open communication with your clients may set the stage for an amicable stipulation for you to withdraw as counsel in the event withdrawal is needed.

No attorney wants the relationships with their clients to disintegrate and the withdrawal process is rarely pleasant. Nevertheless, issues can and do arise that may require consideration of withdrawal. Better to be prepared by reviewing and understanding both your obligations, and options, as set forth in Rule 3-700.

**No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**