Learning Outcomes
After reading this article, you will be able to identify when a lawyer must or may withdraw from representing a client, explain the procedures for proper termination, distinguish between mandatory and permissive withdrawal, and understand the lawyer’s duties to the client upon termination. You will be prepared to answer MPRE questions on withdrawal, client discharge, and post-termination obligations.
MPRE Syllabus
For the MPRE, you are required to understand the rules governing the termination of the client-lawyer relationship. This includes both the circumstances under which withdrawal is required or permitted, and the steps a lawyer must take when ending representation. You should be able to:
- Distinguish between mandatory and permissive withdrawal.
- Identify when a lawyer must seek court approval to withdraw.
- Recognize the client’s right to discharge a lawyer at any time.
- Explain the lawyer’s duties to protect the client’s interests upon termination, including return of property and unearned fees.
- Understand the handling of fees and client property after withdrawal.
- Apply these principles to fact patterns involving ongoing litigation or disputes over withdrawal.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is a situation in which a lawyer is required to withdraw from representing a client?
- The client refuses to pay a bill on time.
- Continuing the representation would violate the rules of professional conduct or law.
- The client disagrees with the lawyer’s strategy.
- The lawyer is busy with other cases.
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When may a lawyer withdraw from representation even if it will harm the client’s interests?
- The client fails to pay a fee after reasonable warning.
- The client insists on a course of action the lawyer finds repugnant.
- The representation will result in unreasonable financial burden.
- All of the above.
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Upon termination of representation, a lawyer must:
- Keep all client papers until the client pays outstanding fees.
- Take reasonable steps to protect the client’s interests.
- Destroy all documents related to the case.
- Notify the opposing party directly.
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In a litigated matter, a lawyer may withdraw immediately after notifying the client, without court approval:
- Always
- Only if the client consents
- Only if permitted by the tribunal
- Never
Introduction
A lawyer’s representation of a client does not always last until the matter is resolved. The client-lawyer relationship can end for many reasons, including the client’s decision, the lawyer’s withdrawal, or circumstances requiring termination. The Model Rules of Professional Conduct set out when withdrawal is mandatory, when it is permitted, and what steps must be taken to protect the client’s interests after termination.
Key Term: Mandatory Withdrawal
The lawyer’s obligation to withdraw from representing a client when continuing would violate the law or rules, the lawyer’s health is impaired, or the client discharges the lawyer.
Grounds for Termination
Termination of the client-lawyer relationship may occur in three main ways:
- Mandatory Withdrawal: The lawyer is required to withdraw in certain situations.
- Permissive Withdrawal: The lawyer may withdraw under specified circumstances.
- Client Discharge: The client has the right to end the relationship at any time.
1. Mandatory Withdrawal
A lawyer must withdraw from representation if:
- Continuing would result in violation of the rules of professional conduct or other law.
- The lawyer’s physical or mental condition materially impairs the ability to represent the client.
- The client discharges the lawyer.
Key Term: Permissive Withdrawal
The lawyer’s right to withdraw from representing a client under certain conditions, even if not required to do so.
2. Permissive Withdrawal
A lawyer may withdraw from representing a client if:
- Withdrawal can be accomplished without material adverse effect on the client’s interests.
- The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.
- The client has used the lawyer’s services to perpetrate a crime or fraud.
- The client insists on taking action the lawyer finds repugnant or fundamentally disagrees with.
- The client fails to fulfill an obligation to the lawyer regarding services (such as paying fees) and has been given reasonable warning.
- The representation will result in unreasonable financial burden on the lawyer.
- Other good cause exists.
3. Client Discharge
A client may discharge a lawyer at any time, with or without cause. The lawyer must withdraw upon being discharged, unless ordered by a court to continue representation.
Key Term: Client Discharge
The client’s absolute right to terminate the lawyer’s representation at any time, for any reason or no reason.
Court Approval and Notice
If a matter is pending before a tribunal, a lawyer may be required to obtain the court’s permission before withdrawing, even if withdrawal is otherwise proper. The lawyer must comply with applicable laws and rules regarding notice and permission.
Key Term: Court Approval
The requirement that a lawyer obtain the tribunal’s permission to withdraw from a matter that is before the court.
Duties Upon Termination
When representation ends, the lawyer must take steps to protect the client’s interests. This includes:
- Giving reasonable notice to the client.
- Allowing time for the client to find other counsel.
- Surrendering papers and property to which the client is entitled.
- Refunding any unearned fees or advances.
Key Term: Duties on Termination
The lawyer’s obligations to protect the client’s interests after withdrawal, including notice, return of property, and refund of unearned fees.
Fees and Client Property
A lawyer is generally entitled to fees already earned, but must promptly return any unearned fees or advances. The lawyer may retain papers as security for a fee only to the extent permitted by law.
Key Term: Unearned Fees
Funds paid in advance for legal services not yet performed, which must be returned to the client upon termination if not earned.
Worked Example 1.1
A lawyer represents a client in a civil lawsuit. The client insists that the lawyer present evidence the lawyer knows is false. The lawyer explains the issue, but the client refuses to change course. What must the lawyer do?
Answer:
The lawyer must withdraw from the representation because continuing would violate the rules of professional conduct. This is a case of mandatory withdrawal.
Worked Example 1.2
A lawyer is handling a contract matter. The client stops paying bills and ignores repeated requests for payment. The lawyer warns the client that nonpayment will result in withdrawal, but the client does not respond. May the lawyer withdraw?
Answer:
Yes. The lawyer may withdraw after giving reasonable warning, as the client has failed to fulfill an obligation to the lawyer. However, if the matter is before a court, the lawyer must seek court approval before withdrawing.
Worked Example 1.3
A client fires her lawyer in the middle of litigation. The lawyer wants to stop work immediately. The court, however, orders the lawyer to continue until a replacement is found. What must the lawyer do?
Answer:
The lawyer must continue representing the client until the court grants permission to withdraw, even if the client has discharged the lawyer.
Exam Warning
On the MPRE, if a question involves a matter before a court, always check whether court approval is required for withdrawal. Withdrawing without permission, even for a good reason, may subject the lawyer to discipline.
Revision Tip
Remember: A lawyer’s duties to the client do not end immediately upon withdrawal. Always consider the obligation to return property and unearned fees, and to provide reasonable notice.
Summary
Termination of the client-lawyer relationship is governed by clear rules. Withdrawal may be mandatory or permissive, but court approval may be required in litigation. Upon termination, the lawyer must protect the client’s interests, return property, and refund unearned fees. The client can discharge the lawyer at any time, but the lawyer may still need court permission to withdraw.
Key Point Checklist
This article has covered the following key knowledge points:
- Mandatory withdrawal is required if continuing would violate the rules, the lawyer is impaired, or the client discharges the lawyer.
- Permissive withdrawal is allowed in specified circumstances, such as nonpayment or fundamental disagreement.
- Court approval is often required to withdraw from a matter before a tribunal.
- The client may discharge the lawyer at any time, but the lawyer may need to continue if ordered by the court.
- Upon termination, the lawyer must give notice, return client property, and refund unearned fees.
- A lawyer may retain papers as security for a fee only if permitted by law.
Key Terms and Concepts
- Mandatory Withdrawal
- Permissive Withdrawal
- Client Discharge
- Court Approval
- Duties on Termination
- Unearned Fees