MRPC: 1.16: DECLINE & WITHDRAWAL Flashcards
What does Rule 1.16(a) say? Is it mandatory?
Rule 1.16 Declining or Withdrawals
Rule 1.16(a) Except as stated in paragraph (c), a lawyer shall not (MANDATORY) represent a client or, where representation has commenced, shall withdraw from the representation of a client IF
(1) representation results in violation of rules of professional conduct;
(2) your mental/physical condition materially impairs your ability to represent the client;
(3) lawyer is discharged;
What are some examples of conduct where a lawyer must withdraw under Rule 1.16(a)?
(1) representation results in violation of rules of professional conduct –>
+ Client insists on criminal course of conduct (e.g. perjury)
+ Conflict of interest you cannot cure
(2) your mental/physical condition materially impairs your ability to represent the client
+ Accidents, substance abuse, Alzheimer’s/dementia
+ If the condition does not materially impair ability to represent, not mandatory
(3) Lawyer is discharged
+ NO exception, no matter how unfair to the lawyer
Are there any exceptions to Rule 1.16(a)(3)?
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client IF
(3) lawyer is discharged
NO exception, no matter how unfair to the lawyer
Explain Rule 1.16(b). Is it mandatory?
Rule 1.16(b) DISCRETIONARY withdrawals: MAY withdraw
(b) (1) Withdrawal has no materially adverse effect on client’s interests
(b) 2) Client persists in a course of action involving the lawyer’s services to perpetuate crime or fraud
(b) (3) Client has used the lawyer’s services to perpetuate crime or fraud
(b) 4) Client insists upon taking action that a lawyer considers repugnant or with which the lawyer has a fundamental disagreement
(b) (5) Client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless obligation is fulfilled
(b) (6) Representation will result in unreasonable financial burden on the lawyer OR has rendered unreasonably difficult by the client
(b) (7) Other good cause for withdrawal exists
Why is Rule 1.16(b)(1) tricky?
(b)(1) Withdrawal has no materially adverse effect on client’s interests
+ A lawyer that wants to withdraw may think there’s no materially adverse effect, but the court or the client may disagree.
[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 6.2.
Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation. Difficulty may be encountered if withdrawal is based on the client’s demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation.
The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3.
True or false: A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion.
True. Rule 1.16 [1]
Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. See Rules 1.2(c) and 6.5. See also Rule 1.3, Comment [4]
True or false: The lawyer is obliged to decline or withdraw simply because the client suggests such a course of conduct;
False: The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct
Rule 1.16[2]
A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law.
The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation.
How are 1.16(a)(1) and 1.16(b)(2) different?
- 16(a)(1): Representation results in violation of rules of professional conduct –> CERTAIN
- 16(b)(2): Client persists in a course of action involving the lawyer’s services to perpetuate crime or fraud –> SHORT OF CERTAIN
What is an example where withdrawal may be permissible under Rule 1.16(b)(4)?
(b)4) Client insists upon taking action that a lawyer considers repugnant or with which the lawyer has a fundamental disagreement
+ Legally OK, morally reprehensible
+ Practical import for “young” associates: Ask partner not to work on a case under 1.16(b)(4) because under 1.7(a)(2) this is a direct conflict within the firm → associate doesn’t want to do what is in the best interest of the firm.
If you believe client’s conduct is repugnant, BUT, withdrawing from the case would cause the client a material adverse effect. Can a lawyer withdraw?
(b)(1) could not apply, (because adverse), but (b)(4) does!
(b)(4): Client insists upon taking action that a lawyer considers repugnant or with which the lawyer has a fundamental disagreement
+ What do you do? YOU CAN STILL WITHDRAW!!!
+ If client’s conduct is shitty, you can still withdraw, because of the word “OR” within the rule
+ If (b)(1) does not apply, THAT DOES NOT NEGATE any of the other section.
+ You may seek to withdraw, even if there will be material adverse effects on the client
What is an example of when Rule 1.16(b)(5) comes into play? And how doe Rule 1.6 interact with 1.16(b)(5)?
(b)(5) Client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless obligation is fulfilled
Ex: Client isn’t paying their bills
+ Relates to 1.6(b)(5) b/c you may want to sue your client, thus you must withdraw and get an exception to disclose
True or false: Rule 1.16(a) trumps Rule 1.16(c)
False. (c) Termination of Representation (Mandatory)
+ 1.16(a) does not trump (c)
+ The minute the client fires you, you still have to file with the court
+ If the court denies your motion, you have to stay on the case
True or false: If a lawyer is concerned about having to withdraw from a case, they should prepare a writing to share with the client in advance?
True. Rule 1.16 [4]
Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances.
True or false: Clients can fire an appointed attorney at any time, no matter the law.
False.
Rule 1.16 [5]
Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring self-representation by the client.
What should clients with diminished capacity do if attorney discharge is appropriate?
Rule 1.16 [6]
If the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client’s interests. The lawyer should make special effort to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 1.14.
