(6) Professional Responsibility: Withdrawal from Representation

Question 1

Mandatory Withdrawal

Answer 1

A lawyer must withdraw their representation if (a) discharges; (b) a physical or mental condition of the lawyer exists (ABA – which materially impairs the representation OR CA – which makes it unreasonably difficult to effectively carry out the representation); OR (c) the representation will result in a violation of an ethics rule or other law. In CA a lawyer must also withdraw if (d) they know or should know that the client is bringing an action without probable cause for the purpose of harassing or maliciously injuring a person.

Question 2

Proper Mandatory Withdrawal Requirements

Answer 2

Proper withdrawal requires a lawyer to: (1) provide timely notice to the client; (2) promptly return any unspent legal fees, advance expenses and all of the client’s papers and property (A lawyer cannot hold a clients materials pending the payment of his fees); AND (3) A lawyer must obtain the court approval to withdraw after a lawsuit has been filed.

Question 3

Permissive Withdrawal (ABA)

Answer 3

(a)the client persists on a criminal or fraudulent course of action; (b) the client has used the lawyer’s services to commit a crime or fraud; (c) the client fails to substantially fulfill a obligation after reasonable warning (i.e., payment of legal fees); (d) the representation has been rendered unreasonably difficult by the client; (e) other good cause exists; (f) the withdrawal will not materially damage the client’s interests; (g) the client insist upon taking action the lawyer deems repugnant or has a fundamental disagreement with; OR (h) the representation will result in an unreasonable financial burden on the lawyer.

Question 4

Permissive Withdrawal (CA)

Answer 4

(a)the client persists on a criminal or fraudulent course of action; (b) the client has used the lawyer’s services to commit a crime or fraud; (c) the client fails to substantially fulfill a obligation after reasonable warning (i.e., payment of legal fees); (d) the representation has been rendered unreasonably difficult by the client; (e) other good cause exists; (f) the client insists on a claim, defense, position or demand that is unwarranted and cannot be supported by a good faith argument; (g) the client freely and knowingly consents; (h) there is an inability to work with co-counsel and withdrawal is in the best interests of the client; (i) the lawyer mental or physical condition makes it difficult for effective representation; OR (j) continuing the representation will likely violate an ethical rule.

Question 5

Under CA & ABA can a lawyer permissively withdraw after a lawsuit has been filed?

Permissive Withdrawal

Answer 5

The lawyer must obtain the courts approval to withdraw after a lawsuit has been filed.