By Carole Buckner
Properly withdrawing from representation pursuant to applicable rules, ethics opinions and case law can reduce the risk of a legal malpractice claim. On November 1, 2018, California’s revised Rules of Professional Conduct will become effective, and the current Rule 3-700 governing withdrawal will be replaced with new Rule 1.16.
A lawyer must take “reasonable steps” to avoid prejudice to the client when withdrawing from representation, provide sufficient notice to the client, and seek permission, as appropriate, if the matter is before a tribunal. When seeking permission to withdraw, the attorney must avoid disclosing confidential client information. COPRAC Form. Opn. 2015-192, citing Cal. Rules of Prof. Cond., Rule 3-100; Cal. Bus & Prof. Code § 6068(e).
Withdrawal is mandatory where the client terminates the representation. Fracasse v. Brent(1972) 6 Cal.3d 784. The new Rule 1.16 will so provide.
Withdrawal is also required where continued representation will require the lawyer to violate the Rules of Professional Conduct or the State Bar Act. The lawyer must withdraw where the client is taking a position without probable cause and for the purpose of harassing an adversary, an evaluation that must be made carefully. See, e.g., Matter of Hickey (1990) 50 Cal.3d 571.
According to a recent ABA report, “To be a good lawyer is to be a healthy lawyer.” Where it is “unreasonably difficult” to carry on the representation of a client effectively due to a lawyer’s mental or physical difficulties, withdrawal is required. Where such circumstances make it “difficult,” withdrawal is permissive. Withdrawal due to personal circumstances is highly situational. See, Nehad v. Mukasey (9th Cir. 2008) 535 F.3d 962.
In other situations, withdrawal is permissive. In the most common situation, where the client consents, the attorney may withdraw. Where the client fails to pay fees or expenses, withdrawal is permissive. But, under the new Rule 1.16, the lawyer must first give the client a reasonable warning.
Permissive withdrawal is also available where the client insists on presenting a claim that is not meritorious, or pursues a course of conduct that is criminal or fraudulent. Unreasonable difficulties in working with clients and co-counsel can also justify withdrawal. The breakdown of the attorney client relationship makes withdrawal permissible. See, Estate of Falco v. Decker (1987) 188 Cal. App. 3d 1004.
In the absence of a protective order or non-disclosure agreement, an attorney withdrawing from representation must promptly release, at the request of the client, all “client papers and property.” This includes correspondence to and from the client, opposing counsel and witnesses, pleadings filed with the court, deposition transcripts, experts’ reports and other writings, exhibits, and physical evidence, whether in tangible or electronic or other form.”
Client papers and property must be released regardless of whether the client has paid for them. This includes work product for which the client has paid, but may not include work product not previously communicated to the client, unless necessary to avoid prejudice to the client. Attorneys are obligated ethically to release electronic versions of the client file. COPRAC Form. Opn. 2007-174. The lawyer may retain copies of client papers made at the lawyer’s own expense.
An important and final step in the withdrawal process requires that the lawyer promptly refund any unearned fee or expense paid in advance. Any funds in dispute must be retained in the client trust account. Cal. Rules of Prof. Cond., Rule 4-100.
By following the applicable law, a lawyer can protect the interests of a client against potential prejudice while the lawyer is withdrawing from the representation. In addition, compliance with the rules governing withdrawal can reduce client complaints and protect against possible discipline, and may also reduce the likelihood of a malpractice claim being made.
Carole Buckner is a partner and general counsel with Procopio, Cory, Hargreaves & Savitch LLP.
This article first appeared in the July 2018 issue of For the Record, the SDCBA’s publication for new lawyers.
No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.