Termination & Scope of Representation Flashcards
Mandatory Withdrawal (CA ONLY)
A lawyer must withdraw from representation if:
the lawyer knows, or reasonably should know, that the client is bringing an action, conducting a defense, asserting a litigation position, or taking an appeal without probable cause and for the purpose of harassing or maliciously injuring a person;
Mandatory Withdrawal (MR + CRPC)
the lawyer knows, or reasonably should know, that representation will result in a violation of the CRPC or the State Bar Act;
the lawyer’s mental or physical condition makes it unreasonably difficult to carry out the representation effectively; or
the client discharges the lawyer.
Mandatory Withdrawal
Re: Collecting fees after doing substantial work for a client who discharges atty
Lawyer can sue client in civil court for compensation for substantial work done before client discharge.
Permissive Withdrawal (CRPC)
Re: When a lawyer can but is not required to withdraw (Client conduct - 1)
When the client insists on presenting a claim or defense that is not warranted under existing law and cannot be supported by a good-faith argument for an extension, modification, or reversal of existing law;
A client’s insistence that his attorney pursue an appeal that is frivolous or taken for the purpose of delay provides grounds for the attorney to withdraw from representation of that client [In re Marriage of Gong and Kwong, 163 Cal. App. 4th 510 (2008)].
Permissive Withdrawal (CRPC)
Re: When a lawyer can but is not required to withdraw (Client conduct - 2)
When Client:
seeks to pursue a criminal or fraudulent course of conduct;
insists that the lawyer pursue a course of conduct that is criminal or fraudulent;
by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;
breaches an agreement or obligation to the lawyer, and the lawyer has warned the client that withdrawal will follow; or
knowingly and freely assents to the withdrawal.
Permissive Withdrawal (CRPC)
Re: Non Client Conduct Related
the inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal;
the lawyer’s mental or physical condition renders it difficult for him to carry out the employment effectively;
a continuation of representation is likely to result in a violation of the CRPC or the State Bar Act; or
the lawyer believes in good faith in a proceeding pending before a court that the court will find existence of other good cause for withdrawal.
Mandatory vs Permissive Withdrawal (CRPC)
Re: Lawyer’s mental or physical conditions
mandatory withdrawal is when its unreasonably difficult, permissible withdrawal is when things would just be difficult.
Mandatory vs Permissive Withdrawal (CRPC)
Re: Communication or representation is likely to result in violation of CRPC or State Bar Act
Mandatory = “lawyer knows or reasonably should know that representation will result in a violation. Permissive Withdrawal rules says continued rep is likely to result in violation. Difference between having actual knowledge and simply believing.
Permissive Withdrawal under MR
A lawyer may withdraw under the Model Rule if:
it can be done without material adverse effect; (!!!!!!!)
the client persists in a criminal or fraudulent course of action involving the lawyer’s services;
the client used the lawyer’s services to perpetrate a crime or fraud;
the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
the client fails to substantially fulfill an obligation to the lawyer (i.e., fees) and is given reasonable warning of withdraw unless fulfilled;
representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
other good cause. (!!!!!!)
Permissive Withdrawal (MR & CRPC)
Re: TLDR
Just remember as long as There is good cause, there is permission to withdraw. And also under the ABA, if withdrawal can be done without material adverse effect to the client, you don’t even need good cause!
Responsibilities of withdrawing lawyer
Safeguarding clients interests is your first and major responsibility.
In addition, in order for in order for a lawyer to withdraw, the lawyer must get permission from the Court if the Court has taken jdx over a matter (which happens anytime the complaint is filed) regardless if we’re dealing with mandatory or permissive withdrawal, the lawyer must get permission of the court in order to withdraw. If ct refuses permission then lawyer cannot withdraw.
Communication with Client (MR + CRPC)
A lawyer must:
promptly inform the client of any decision where the client’s informed consent is required;
reasonably consult with the client about the means to accomplish the client’s objectives;
keep the client reasonably informed about significant developments, including prompt compliance with reasonable requests for information and copies of significant documents necessary to keep the client informed; and
advise the client about any relevant limitation on the lawyer’s conduct when the lawyer knows the client expects assistance as permitted by law.
