Withdrawal; Duties Upon Termination

Question 1

Withdrawal - General

Answer 1

General Rule: Shouldn’t take a case unless attorney knows he/she can see it through to the end

Most Important Rule: If withdrawing from a case pending before a a tribunal, attorney needs permission from the judge.

Question 2

Withdrawal - Mandatory Withdrawal

Answer 2

a. Representation Violates OH Rules or Other Law

Example 26: Firm A and Firm B merge. However, the combined firm now represents opposing parties in the same case. This is impermissible, and thus the attorneys must withdraw from representation.

• Individual client engages in illegal or fraudulent conduct
• If client is a corporation:
  
  • If one person is committing the illegal conduct, attorney has duty to communicate the conduct up the chain of command within the corporation.
  • In OH, attorney’s reporting duty stops with the chain of command. (withdraw if board of directors says no)

b. Attorney’s Health

• Withdrawal is mandatory if attorney’s physical or mental health materially impairs his/her representation of client.

c. Discharge

• Client has an absolute right to fire the attorney at any time.
• Hourly fee: Entitled to earned fees
• Contingency fee: Entitled to quantum meruit recovery for hours worked (but not the full amount of the fee)

Question 3

Withdrawal - Permissive Withdrawal

Answer 3

a. Without Harm to Client

• Can withdraw at any time for any reason if done without materially harming the client

b. Harm to Client

• Even if harm to the client may result, may withdraw in the following circumstances:
  i) The client persists in a course of action the lawyer reasonably believes is illegal or fraudulent (“actual knowledge” of illegal of fraudulent conduct requires mandatory withdrawal).
  ii) The lawyer learns that his/her previous serviceswere used by the client to perpetrate a crime or fraud (attorney may reveal information needed to mitigate harm to victims).
  iii) The client insists on a course of action that the lawyer finds repugnant or which the lawyer has a fundamental disagreement.

Example 27: If Client wants Attorney to engage in “scorch and burn” litigation, Attorney may withdraw. Or if Client makes representation unreasonable difficult, Attorney may withdraw.

iv) Representation creates an unreasonable difficult burden on the lawyer.
v) The client fails to pay as agreed.

Client must be given a notice and reasonable time.

Exam Tip 10: Be careful of questions where one of the above grounds applies but a case is pending before a court, the judge’s permission is required for the attorney with withdraw.

vi) The lawyer selling his/her law practice or retiring from the practice of law.
vii) Other good cause applies.

Question 4

Duties Upon Termination

Answer 4

• Upon termination, an attorney must try to protect a client’s interests by:
  
  • Giving notice to the client
  • Allowing time for client to find other counsel
  • Surrendering client’s records and property
  • Refunding any unearned fees paid by the client
    
    • Contingency fee cases: Attorney must notify client’s new counsel that attorney has a charging lein on client’s ultimate recovery.
    • Disputes about fees owed: If a client disputes the amount owed, the attorney must put the disputed amount into escrow until the dispute is resolved.

Example 28: Client paid Attorney an advanced fee of $10,000. Attorney completed 20 hours of work at a rate of $100 per hour, so Attorney claims he is owed $2,000. Client disputes this amount, arguing that Attorney had only done approximately 10 hours of work – so Attorney should be paid $1,000. Here, Attorney should return $8,000 to Client, as both agree that Client is owed this amount. Attorney should transfer $1,000 to his own account, as both agree that Attorney is owed this amount. The disputed $1,000 will go into escrow until the dispute is resolved.

• The above rule applies if a a third party claims part of the money.

Example 29: From above example - Client’s former attorney claims a charging lien on proceeds, arguing that she is owed $3,000 for work done on the case. Client disagrees. So the $3,000 will be put into escrow until the dispute is resolved.

Question 5

After Trial or Settlement

Answer 5

1. Possibility of Appeal

• If a client is unsatisfied with a result after a court has issued final judgment, attorney should discuss the options and possibility of appeal.
• It is a reasonable limitation on an attorney’s services that he/she may not want to take the case to appeal, but the attorney must preserve the client’s right to appeal.
  
  • Attorney must preserve right for appeal and ensure that the client knows of applicable deadlines.

2. After Settlement

• If a case settles, an attorney cannot make an agreement limiting his/her their future representation .

Example 30: In a settlement agreement, opposing counsel wants to include a condition stating that Attorney agrees never to sue that person again. Attorney cannot agree to this.