By Mitchell L. Lathrop
Sometimes the relationship between client and counsel becomes so difficult and fraught with misunderstandings that counsel wants to depart from the situation. Sometimes also, the departure may not be as easy as counsel hoped. For example, Rule 1.2 of the Rules of Professional Conduct requires that “subject to rule 1.2.1, a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by rule 1.4, shall reasonably consult with the client as to the means by which they are to be pursued.” At the same time, counsel cannot assist in or advise the violation of a law[1] and must use reasonable diligence in representing the client.[2] So what happens when the attorney-client relationship has deteriorated to the point where the lawyer feels he or she must get out?
Of course, the client can always fire the lawyer, or permit the lawyer to resign or substitute out of pending litigation, but occasionally situations arise where the client wants the lawyer to remain and the lawyer wants to go. What then? It isn’t as simple as walking out and moving to the nearest motel.
There are two scenarios: (1) there is no litigation pending[3] so the lawyer’s departure can be effected without a formal motion to be relieved, but subject nevertheless to certain rules; and (2) litigation is pending. Regardless of which scenario applies, confidentiality of the client’s information must be observed except if the client has or is about to commit a criminal act .[4]
When no litigation is pending, the best practice, if available, is for the lawyer and the client to agree about the lawyer’s withdrawal and the terms of such withdrawal. Of course, a lawyer may withdraw with or without cause as long as the withdrawal would not result in undue prejudice to the client’s interest. The lawyer must give the client adequate notice of his or her withdrawal[5] and return the client’s files if so requested.
When litigation is ongoing, counsel cannot withdraw at a critical point in the litigation, because that would prejudice client,[6] but can withdraw (1) on the consent of both the client and the attorney, filed with the clerk, or entered upon the minutes; and (2) upon the order of the court, upon the application of either client or attorney, after notice from one to the other.[7] When a motion to be relieved is brought, the lawyer must declare the grounds for withdrawing “in general terms and without compromising the confidentiality of the attorney-client relationship”.[8] The determination whether to grant or deny a motion to withdraw as counsel is within the sound discretion of the trial court,[9] and an attorney’s withdrawal from a case will only be permitted if withdrawal can be accomplished without undue prejudice to the client’s interests.[10]
No matter the situation, amicable resolution by compromise and agreement is usually provides the best outcome for both attorney and client!
[1]Rule 1.2.1. All references to rules are references to California’s Rules of Professional Conduct.
[2]Rule 1.3.
[3]“No litigation” means just that and includes periods where there is no active litigation but the matter is still pending on the court’s calendar. “Matter” includes any judicial or other proceeding, application, request for a ruling or other determination.
[4]Rule 1.6.
[5]Rule 1.15.
[6]Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915.
[7]Code of Civil Procedure § 284. See also Palma v. U.S. Industrial Fasteners, Inc., (1984) 36 Cal.3d 171, 180.
[8]JB Home Improvement, Inc. v. Imaged, 2023 Cal. Super. LEXIS 106386 (Cal. Super. Dec. 15, 2023).
[9]Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133; Mandell v. Superior Court(1977) 67 Cal.App.3d 1, 4.
[10]Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.