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ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
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(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:
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the 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 the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by law.
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| Mandatory Withdrawal/Prohibited Representation. A lawyer should never accept representation of a client or, having commenced the representation, continue same, unless the lawyer can perform the required work competently (see MRPC 1.1 (Competence) and ACTEC Commentary thereon); can avoid conflicting interests (see MRPCs 1.7 (Conflict of Interest: Current Clients) and 1.8 (Conflict of Interest: Current Clients: Specific Rules) and ACTEC Commentaries thereon); and is not physically or mentally impaired from diligently completing the representation (see MRPC 1.3 (Diligence) and ACTEC Commentary thereon).
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| Also, the representation must not result in the violation of any Rule of Professional Conduct applicable to the lawyer or any other law applicable to either the lawyer or the client. The most common problems facing the estates and trusts lawyer in this regard include conflicts of interest arising after the representation of joint clients (e.g., husband and wife) has commenced (see MRPC 1.6 (Confidentiality of Information) and ACTEC Commentary thereon, particularly “Confidences Imparted by One Joint Client”) and the misconduct of a fiduciary client who either refuses to follow the lawyer's advice or, having breached a fiduciary obligation owed to others, refuses to correct the matter (see MRPCs 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer) and 1.6 and ACTEC Commentaries thereon, particularly “Disclosure of Acts or Omissions by Fiduciary Client” and “Disclosures by Lawyer for Fiduciary”). The lawyer's withdrawal is mandatory when the lawyer's own conduct may violate a Rule of Professional Conduct or a law. See, e.g., ACTEC Commentary on MRPC 1.14 (Client With Diminished Capacity).
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| Withdrawal is permissive in most (but not all) jurisdictions if it is the client's conduct that will violate the law, although a lawyer may never assist the client in violating the law or breaching any fiduciary obligation. When a lawyer withdraws from representation, the duty of confidentiality imposed by MRPC 1.6 continues although, if the representation involves judicial proceedings, the lawyer may be required to explain the withdrawal to the court. (See ACTEC Commentary on MRPC 1.6.) Applicable state law and ethics opinions should always be consulted to determine the nature and extent of the disclosures, if any, mandated or permitted to be made by the withdrawing lawyer to the court or other parties.
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| Finally, a lawyer must always withdraw from a representation if the lawyer is discharged by the client (whether with or without cause). If the client has diminished capacity, the lawyer should consider whether the client has the requisite capacity to terminate the representation and whether the lawyer can or should take actions authorized by MRPC 1.14 to protect the client and the client’s interests.
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| Permissive Withdrawal. A lawyer may withdraw from the representation of a client whenever withdrawal can be effected either without material adverse effects on the interests of the client or for one or more of the following reasons: 1) the client persists in conduct involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; 2) the lawyer discovers after the fact that the client has used the lawyer's services to perpetrate a crime or fraud; 3) the client insists upon pursuing objectives that the lawyer finds repugnant or with which the lawyer has a fundamental disagreement; 4) the client fails “substantially” to fulfill an obligation to the lawyer regarding the lawyer's services (e.g., by failing to timely pay the lawyer's bills) and has been given reasonable warning in advance of the withdrawal that the lawyer will withdraw unless the obligation is fulfilled; 5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or 6) other “good cause” (often involving mutual antagonism between lawyer and client and the breakdown of the lawyerclient relationship). See ACTEC Commentary on MRPC 1.4 (Communication), particularly “Dormant Representation” and “Termination of Representation”.
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| Special Rules in Litigation and Other Court Proceedings. The right of a lawyer to withdraw from the representation of a client engaged in litigation or other court proceedings (e.g., a judicially supervised probate, trust or protective proceeding) is subject to the court's overriding authority to require the lawyer to continue in the representation, particularly when a hearing is pending. See 1.16( c ). Generally, court permission for withdrawal is required whenever the client has refused to consent to the lawyer's withdrawal, when the client cannot be found and fails to communicate with the lawyer, or where the client may lack the capacity to give an informed consent to the lawyer's withdrawal (e.g., the mentally impaired or incapacitated client). Generally, courts retain broad discretion to deny withdrawal if the withdrawal would adversely affect parties to the proceeding or impede the administration of justice. See Comment to MRPC 1.16.
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| Duties Upon Withdrawal. Subparagraph (d) of MRPC 1.16 requires the withdrawing lawyer to take “reasonably practicable” steps to protect the client's interests and includes requirements for giving reasonable notice of the impending withdrawal to the client, giving the client time to employ alternative counsel, refunding any advanced but unearned fees and returning any papers and property to which the client is entitled under applicable law. For further discussion of the duty to communicate with the client, see ACTEC Commentary on MRPC 1.4 (Communication).
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| Other Events of Termination. Obviously, a client's death terminates a lawyer's representation although the client's successor in interest, typically an executor or successor trustee, may revive the representation. Special considerations apply to a lawyer's representation of a client who has become or may be mentally impaired or incapacitated. See MRPC 1.14 (Client With Diminished Capacity) and ACTEC Commentary thereon. A representation may also be terminated by the lawyer's completion of the legal services or tasks mutually contemplated by the lawyer and client, such as, e.g., the completion of an estate planning project for the client. Refer also to ACTEC Commentary on MRPC 1.4 (Communication) and the concept of the dormant representation.
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| See also the Annotations following the ACTEC Commentary on MRPC 1.4.
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| Cases
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District of Columbia:
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Donnelly v. Parker, 486 F.2d 402 (D.C. Cir. 1973). This case is discussed in the Annotations following the ACTEC Commentary on MRPC 1.14.
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Louisiana:
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In re Succession of Wallace, 574 So. 2d 348 (La. 1991). In this case, cited also in the Annotations following
the ACTEC Commentaries on MRPCs 1.2 and 1.7, the court held that an executor may discharge
the lawyer designated by the testator in the testator’s will despite a statute purporting to make
such a lawyer nondischargeable.
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New York:
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Lama Holding Co. v. Shearman & Sterling, 758 F. Supp. 159 (S.D.N.Y. 1991). This case is discussed
in the Annotations following the ACTEC Commentary on MRPC 1.2.
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| Ethics Opinions
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ABA Formal Op. 96-404 (1996). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 1.14.
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ABA Formal Op. 92-366 (1992). A lawyer who knows that the lawyer’s client is using or will use the
lawyer’s services or work product to perpetrate a fraud must withdraw and may disaffirm any documents
used by the client to further the fraud even if such a so-called “noisy” withdrawal inferentially reveals
attorney-client confidential communications. A lawyer whose client has used the lawyer’s services in the
past to perpetrate a fraud which is no longer continuing, may but is not required to withdraw. Any such
withdrawal may not be “noisy.”
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ABA Informal Op. 1397 (1977). “No lawyer can continue to represent a client who does not wish to
be represented.”
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Connecticut:
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Op. 03-06 (2003). Pursuant to MRPC 1.16(d) a law firm in possession of original will should furnish
that will to new lawyer on written request of testator’s attorney-in-fact, noting that testator through her
attorney-in-fact could retain new counsel and authorize transfer of all papers to new counsel.
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Delaware:
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Board Case No. 52 (2001). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 1.4.
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Indiana: |
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Op. 2-2003 (2003). This opinion is discussed in the Annotations following the ACTEC Commentary on MRPC 1.2.
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Rhode Island: |
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Op. No. 2000-6 (2000). Lawyer must turn over copy of joint file of clients A and B to client B as
required under MRPC 1.16(d).
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