Rules 1.16- DECLINING OR TERMINATING REPRESENTATION.docx

Rules 1.16: DECLINING OR TERMINATING REPRESENTATION 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: the representation will result in violation of the Rules of Professional Conduct...

Rules 1.16: DECLINING OR TERMINATING REPRESENTATION 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: the representation will result in violation of the Rules of Professional Conduct or other law; the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or the lawyer is discharged. Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: withdrawal can be accomplished without material adverse effects on the interests of the client;  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 upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; 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; the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or other good cause for withdrawal exists. 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. 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 other laws permit. Comment A lawyer should not accept representation unless it can be performed competently, promptly, without improper conflict of interest, and to completion. Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. See Rules 1.2(c) and 6.5. See also Rule 1.3, Comment. Mandatory Withdrawal A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other laws. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a professional obligation will not constrain a lawyer. When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 6.2.  Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation.  Difficulty may be encountered if withdrawal is based on the client’s demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep the facts that constitute such an explanation confidential.  The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to clients and the court under Rules 1.6 and 3.3. Discharge A client can discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services. Where future disputes about the withdrawal may be anticipated, preparing a written statement reciting the circumstances may be advisable. Whether a client can discharge appointed counsel may depend on applicable law.  A client seeking to do so should be given a full explanation of the consequences.  These consequences may include a decision by the appointing authority that the appointment of successor counsel is unjustified, thus requiring self-representation by the client. If the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer. In any event, the discharge may be seriously adverse to the client’s interests.  The lawyer should make a special effort to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 1.14. Optional Withdrawl A lawyer may withdraw from representation in some circumstances: The lawyer can withdraw if accomplished without material adverse effects on the client’s interests.  Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it.  Withdrawal is also permitted if the lawyer’s services were misused in the past even if that would materially prejudice the client. The lawyer may also withdraw where the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement. A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation. Assisting the Client upon Withdrawal Even if the client has unfairly discharged the lawyer, a lawyer must take all reasonable steps to mitigate the consequences to the client.  The lawyer may retain papers as security for a fee only to the extent law permits. See Rule 1.15.