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Column | Ethics: “You’re fired!” . . . “No, I quit!” – The Ethics of Withdrawal

Mon, 03/25/2019 - 14:38 -- admin25

by Jeanne M. Huey

It is rare that a client and attorney sever their relationship on good terms during a case. And, no matter the reason, withdrawal requires simultaneously protecting yourself and your client—a trick that is never easy. It is therefore important to frequently review the disciplinary rules that govern withdrawal in order to avoid possible landmines.

The right to withdraw from representing a client is not absolute. Rule 1.15 of the Texas Disciplinary Rules of Professional Conduct (the Rules) sets out the specifics of withdrawal, and part (d) requires a lawyer to take all reasonable steps to mitigate the consequences of withdrawal to the client regardless of why it has occurred. This is usually thought of primarily as a litigation problem—you cannot withdraw on the eve of trial—but it can arise in a transactional practice as well. For deals that cannot wait, pulling out at the last minute will inevitably damage the client.

The solution to not having your withdrawal negatively affect the client’s interests is to act promptly when the need arises. Client issues rarely appear without warning, so when dealing with problem clients, keep your eye on the calendar. As much as you would like to believe you can fix the relationship, if you wait too long it may be too late.

Withdrawal by mutual agreement or substitution of counsel is easy—the courts do not require an explanation—although you should always follow the Local and Court Rules to make the procedure as quick and painless as possible. On the other hand, withdrawal without client consent must be explained in order to obtain the Court’s approval—and you are not out until the Court approves. The obligation to explain your withdrawal does not, however, trump the obligation to preserve client confidences found in Rule 1.05, and the definition of “confidential information” is broad enough to include things like whether the client is paying its bills on time, has lied to you, or even just won’t cooperate in the case. The exceptions that allow you reveal client confidences do not include obtaining permission to withdraw from a court, so you must be careful what is said in a motion to withdraw and to the Court if the motion requires a hearing. Sticking with something like “differences between the attorney and client that make continued representation impossible” is the safest bet and, if you do not wait too long, will be enough for most courts.

The file belongs to the client and so when you withdraw you must return the entire file upon request (Rule 1.15(d), 1.14(b)). Texas is a “whole file” state, meaning everything generated in the course of the representation is part of the file. (Ethics Opinion 570). There are exceptions related to duties to third parties and legitimate attorneys’ liens, but, as a practical matter, everything about the case, including purely internal emails and notes, belongs to the client and must be turned over to the client or its new counsel. This raises the possibility of embarrassment at least and malpractice liability at worst when email conversations within the Firm are not written with care. The internal email in which one lawyer blames another for missing a deadline or complains about the client with colorful language is all part of the file. If you do not want the client to read it later, do not write it down in the first place.

Withdrawal can also be time consuming and if you have not been paid you will not be eager to drop your billable work to withdraw and pull together the file. However, since time is not billable unless it is performed on behalf of the client, you cannot charge the client for filing your motion, attending a hearing, or gathering, reviewing and copying the file no matter what your fee agreement says. To do so would be a violation of Rule 1.04—the prohibition against charging an unconscionable fee. (Lee v. Daniels & Daniels, 264 S.W.3d 273).

Withdrawing from representation is never easy and usually involves an unhappy client, an unhappy lawyer, or both. For lawyers, that unhappiness does not excuse strict compliance with all the applicable ethical obligations, so care is always required.

Jeanne M. Huey is the Managing Partner at Hunt Huey PLLC and can be reached at jhuey@hunthuey.com

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