Mandatory and Permissive Withdrawal Flashcards
Mandatory Withdrawal
[ABA] [CALIFORNIA]
[FIVE OPTIONS]
1) Withdrawal if representation will result in an ethical violation
2) [ABA]: Withdrawal when lawyer’s physical/mental health materially impairs representation
3) [CA] Withdrawal when lawyer’s physical/mental health makes representation unreasonably difficult
4) [CA] Withdrawal f L knows or reasonably should know C is asserting claim/defense/appeal without probable cause and to harass/maliciously harm another
5) When L has been fired for any reason, unless representation is ordered by the court.
Permissive Withdrawal
[ABA]
[SEVEN OPTIONS]
1) C wants L to pursue claim L reasonably believes is crime/fraud
2) L learns services are used to further crime fraud
3) C seeks action L finds repugnant or has a fundamental disagreement. (Should speak to C first)
4) C is unreasonably difficult
5) C fails to fulfill an obligation (i.e. pay fees), and L reasonably warns
6) Unreasonable financial burden on L
7) Other good cause.
Under the ABA, can an attorney permissively withdrawal if it would materially harm the client?
No.
Permissive Withdrawal
[CALIFORNIA]
[TEN OPTIONS]
1) When L does not have a good faith basis to modify, reverse, or extend existing law
2) Services are used for crime/fraud, or L **reasonably believes* services are used for such purpose
3) C insists on conduct that is crime/fraud
4) C makes representation unreasonably difficult
5) Client fails obligation (i.e. paying fees) and L reasonably warns
6) C knowingly or freely assents to permissive termination
7) Withdrawal is in the best interest of the C
8) Mental/Physical state of L makes representation difficult
9) Representation would likely result in violation of CA rules
10) In good faith
What options for Permissive Withdrawal do the ABA and California rules have in common?
[FOUR OPTIONS]
1) C wants L to pursue claim L reasonably believes is crime/fraud
2) L learns services are used to further crime fraud
3) C is unreasonably difficult
4) C fails to fulfill an obligation (i.e. pay fees), and L reasonably warns
What is the procedure for when an attorney withdrawals?
A lawyer must give the client reasonable notice before withdrawing, to give the client a reasonable opportunity to obtain new representation.
If permission for termination of a representation is required by the rules of a tribunal, a lawyer must not terminate a representation before that tribunal without its permission.
May an attorney hold onto a client’s papers following termination if the client has failed to fulfill an obligation (i.e. pay fees)?
[ABA][CALIFORNIA]
ABA: The attorney must give the client what they are “entitled” too, but may withhold until payment.
CA: Must return all client papers, whether the fee has been paid or not.
What type of fees can an attorney keep following termination/withdrawal?
May keep any fees for services already rendered and true retainer (availability fees).
MUST return unearned fees.
