Withdrawing From a Representation, By Choice or By Duty
Ending a representation is governed by a rule that separates the situations where a lawyer has no choice from those where a lawyer has a judgment to make. Both are then subject to a tribunal's permission and to a list of protective steps the client is owed regardless.
The rule in short
A lawyer must withdraw where continuing would violate the rules or other law, where the lawyer's condition materially impairs the representation, or where the lawyer is discharged. A lawyer may withdraw where it causes no material adverse effect on the client, or on one of several enumerated grounds including repugnant client conduct and non-payment after warning. Where a tribunal is involved its permission controls, and protective steps are owed in every case.
Beginning a representation is a choice. Ending one is a regulated act, and the rule that governs it separates the circumstances in which a lawyer has no discretion from those in which a lawyer is weighing competing considerations. Overlaying both is the tribunal's authority, which can require a lawyer to stay in a case they have good reason to leave.
The three situations that compel withdrawal
A lawyer shall not represent a client, or where the representation has begun shall withdraw, in three circumstances. The first is where the representation will result in violation of the rules of professional conduct or other law. That covers an unwaivable conflict discovered after the work has started, and it covers a client insisting on a course the lawyer cannot assist.
The second is where the lawyer's physical or mental condition materially impairs the ability to represent the client. The rule is stated without qualification and applies whatever the cause. The third is where the lawyer is discharged. A client may discharge a lawyer at any time, with or without cause, and the lawyer's view of the merits of the decision is not part of the analysis.
Where withdrawal is a judgment
Permissive withdrawal begins with a general permission. A lawyer may withdraw if it can be accomplished without material adverse effect on the interests of the client. Where that is not so, one of the enumerated grounds must be present.
The enumerated list covers a client persisting in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; a client having used the lawyer's services to perpetrate a crime or fraud; a client insisting on action the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; a client failing substantially to fulfill an obligation regarding the lawyer's services, including payment, after reasonable warning that the lawyer will withdraw; a representation that will result in an unreasonable financial burden or has been rendered unreasonably difficult by the client; and other good cause.
The fee ground carries a condition inside it. The client must have been given reasonable warning that the lawyer will withdraw unless the obligation is met. A lawyer who moves to withdraw over unpaid fees without having sent that warning has not satisfied the ground, whatever the state of the account.
Courts regularly deny withdrawal for unpaid fees where the case is close to trial, where the client would be left without counsel, or where the lawyer took the matter knowing the client's means. The rule permits the request; the tribunal decides it. A firm that treats non-payment as a guaranteed release plans badly, and the risk is highest in exactly the matters where the client has stopped paying.
| Circumstance | Category | Tribunal permission required |
|---|---|---|
| Continuing would require violating a conduct rule | Mandatory | Yes where a matter is pending; the tribunal must still be asked |
| The client discharges the lawyer | Mandatory | Yes where a matter is pending, usually by substitution |
| Client uses the lawyer's services to commit a fraud | Permissive | Yes where a matter is pending |
| Client will not pay after a reasonable warning | Permissive | Yes, and frequently refused close to trial |
| Matter concluded, no proceeding pending | Neither; the representation has ended | No |
The tribunal's authority over the exit
Where the representation is before a tribunal, the rule defers to it in two ways. A lawyer must comply with applicable law requiring notice to or permission of the tribunal, and when ordered to do so must continue the representation notwithstanding good cause for terminating it. Local rules on the form of a motion, notice to the client, and timing all apply.
This produces the sharpest tension in the rule. A lawyer with a mandatory ground who is ordered to continue is caught between the tribunal's order and the conduct rules, and the orthodox answer is to explain to the court, so far as confidentiality permits, that continuing would require a violation. Where the ground is permissive, an order to continue simply resolves the question and the representation proceeds.
Timing is the variable a lawyer controls. A ground that would comfortably support withdrawal early in a matter often will not support it after a trial date is set, because the calculus the court applies is prejudice to the client and disruption to the docket rather than the strength of the lawyer's reason. Firms that act on a problem when it first appears preserve an option that disappears as the case matures.
What the client is owed on the way out
On termination, from whatever cause, a lawyer must take steps to the extent reasonably practicable to protect the client's interests. The rule lists them: reasonable notice to the client, time to employ 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 refund obligation is the one that connects to the money rules. Unearned advances sit in trust and are returned from there, with a final accounting, under the safekeeping requirements that govern client funds. Where the matter was taken on contingency, whether anything is owed for work performed is a separate question governed by state law and by the terms required in a contingent fee agreement, and it usually cannot be answered until there is a recovery to measure against.
The problems that most often force the question
Conflicts account for a large share of withdrawals. A conflict that surfaces after work has begun, and that cannot be cured by consent, is a mandatory ground, and the analysis of whether consent is available runs through the conditions attached to a current-client conflict. Where the disability arrived with a lateral hire, the firm may be able to keep the matter instead of leaving it, depending on whether screening is permitted in that jurisdiction.
The remaining common causes are a client's intended conduct, which raises whether anything may be disclosed under the permissive disclosure grounds, and simple breakdown in the relationship. In all of them the departing lawyer's obligations do not end at the courthouse door: confidentiality continues indefinitely, the former-client conflict rules attach from the moment the matter closes, and the file has to be preserved for whatever period the licensing state requires.
Points to carry away
- Three grounds make withdrawal mandatory: illegality, impairment of the lawyer, and discharge by the client.
- A client may discharge a lawyer at any time, with or without cause.
- Permissive withdrawal is always available where it can be accomplished without material adverse effect on the client.
- Where a tribunal's rules require permission, a lawyer must continue if the tribunal orders it, even where good cause to withdraw exists.
- On termination the lawyer must give notice, allow time for new counsel, surrender papers and property, and refund unearned fees.
- How much a lawyer may tell a court about the reason for withdrawal is limited by the duty of confidentiality.
Questions readers ask
Can a court refuse to let a lawyer withdraw?
It can, and the rule says so expressly: when ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. Courts weigh the reason offered against the disruption withdrawal would cause, and a motion filed close to trial is frequently denied. That outcome can leave a lawyer required to continue in circumstances the conduct rules would otherwise treat as grounds for departure. The narrow exception is where continuing would require the lawyer to violate a rule, which the tribunal must be told.
How much may a lawyer say when moving to withdraw?
As little as will support the motion. The duty of confidentiality is not suspended by the filing, and a motion reciting that the client lied, or describing settlement discussions, discloses information relating to the representation. The conventional formulation refers to a breakdown in the relationship or to professional considerations requiring withdrawal, and courts familiar with the rules generally accept it. Where a judge presses for detail, a request to submit the explanation in camera or under seal is the usual route rather than an open filing.
Does the client get the whole file, including the lawyer's internal notes?
The rule requires surrendering papers and property to which the client is entitled, and what that includes is a question of state law rather than a uniform national answer. Some jurisdictions follow an entire file approach under which everything except limited internal firm material goes to the client. Others follow an end product approach that excludes the lawyer's internal work notes. Where a state permits a retaining lien for unpaid fees, it is usually restricted so it cannot be used in a way that prejudices the client.
Sources
- ABA Model Rules of Professional Conduct — Rule 1.16, Declining or Terminating RepresentationThe mandatory and permissive grounds, the tribunal permission provision and the protective steps.
- ABA Model Rules — Rule 1.2, Scope of Representation and Allocation of AuthorityDefines the decisions belonging to the client, disagreement over which can produce grounds for withdrawal.
- ABA Model Rules — Rule 1.6, Confidentiality of InformationLimits what a lawyer may reveal in explaining a withdrawal to a court or a successor.
- ABA Model Rules — Rule 3.3, Candor Toward the TribunalImposes remedial duties that can survive, and sometimes compel, withdrawal from a proceeding.
- ABA Model Rules — Rule 1.15, Safekeeping PropertyGoverns the accounting and return of client funds and property on termination.
- ABA Model Rules — Rule 1.17, Sale of Law PracticeThe separate route by which representations are transferred when a practice closes or is sold.
- District of Columbia Bar — Rules of Professional ConductAn adopted state-level text with its own treatment of file surrender and retaining liens.
Justice Partners Journal is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
