Declining or Terminating Representation Flashcards
Mandatory Withdrawl
A lawyer MUST withdraw from representing a client if:
(a) discharged;
(b) a physical or mental condition of the lawyer exists (ABA = materially impairs the representation; CA = 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 he knows or should know that the client is bringing an action (1) without probable cause, (2) for the purpose of harassing or maliciously injuring a person.
Mandatory Withdrawl–procedure
Proper withdrawal requires the lawyer to:
(1) provide timely notice to the client; AND
(2) promptly return any unspent legal fees, advanced expenses, and all of the client’s papers and property. A lawyer CANNOT hold the client’s materials pending the payment of his fees.
Mandatory Withdrawl–Withdrawl after lawsuit has been filed
Under the ABA and CA, a lawyer MUST obtain the court’s approval to withdraw after a lawsuit has been filed.
Permissive Withdrawl–In General
A lawyer MAY withdraw from representing a client if:
(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 an obligation after reasonable warning (i.e. payment of legal fees);
(d) the representation has been rendered unreasonably difficult by the client; OR
(e) other good cause exists.
Permissive Withdrawl–ABA
Under the ABA, a lawyer MAY also withdraw if:
(a) the withdrawal will not materially damage the client’s interests;
(b) the client insists upon taking action the lawyer deems repugnant or has a fundamental disagreement with; OR
(c) the representation will result in an unreasonable financial burden on the lawyer.
Permissive Withdrawl–CA
In CA, a lawyer MAY also withdraw if:
(a) the client insists on a claim, defense, position, or demand that is unwarranted and cannot be supported by a good faith argument;
(b) the client freely and knowingly consents;
(c) there is an inability to work with co-counsel and withdrawal is in the best interests of the client;
(d) the lawyers mental or physical condition makes it difficult for effective representation; OR
(e) continuing the representation will likely violate an ethical rule.
Under both ABA and CA law, can an attorney ever withdraw from a lawsuit (after it’s been filed) without court approval?
NO
