7.08.02. Permissive Withdrawal

There are other situations where a lawyer is not required to seek to withdraw from representing a client, but where it is permissible.  Overarching all of these requirements is that the withdrawal must be able to be accomplished without “material adverse effect” on the client. (Rule 1.16(b)(1)).  The question of whether a client will face material adverse effect is determined on a case-by-case basis.  Often, if a deadline is pending the lawyer should not withdraw because the client’s case could be compromised. 

Using the lawyers services in a criminal/fraudulent manner

Lawyers do not have to assist a client if the client is engaged in conduct that the lawyer reasonably believes is criminal or fraudulent. [Rule 1.16(b)(2)] A lawyer can also withdraw if they learn that the client has used the lawyer’s services to perpetrate a crime or fraud. [Rule 1.16(b)(3)]

Criminal Defendant Berrysmith was charged with delivery of cocaine.  Mulligan was appointed to represent Berrysmith.  Berrysmith wrote Mulligan a letter setting out his version of events.  Subsequently, after receiving and reviewing additional documents, Berrysmith changed his story to one that Mulligan did not believe was credible.  When Mulligan expressed to Berrysmith his skepticism of the new story, Berrysmith refused to talk to Mulligan about it and accused Mulligan of betraying him.  Mulligan sought to withdraw from the representation on the belief that Berrysmith would commit perjury when he took the stand.  Should Mulligan be allowed to withdraw? [State v. Berrysmith, 944 P. 2d 268 (Wash. Ct. App. 1997)] 

Yes.  The question for the court was whether Mulligan had a “reasonable belief” that Berrysmith was going to commit perjury (a crime and a fraud).  The court noted that a “gut level” belief (or a “suspicion” or a “sense”) that a client is going to commit a crime or fraud is not enough.  Instead, the question is whether there is enough of a factual basis for the lawyer to form a reasonable belief that the crime/fraud is likely to happen.  In this case there was the letter setting out the first version of events that changed after receiving additional documentation.  These facts were sufficient to raise the lawyer’s belief from mere “gut” to a reasonable belief that the client would commit perjury. 

Actions by the client that the lawyer considers “repugnant” or where there is a “fundamental” disagreement

A lawyer can seek to withdraw if the client takes action that the lawyer considers repugnant or where there is a fundamental disagreement between the lawyer and client.  This rule was amended in 2002.  Prior to that time, the rule limited the lawyer’s right to withdraw to when the client sought to “pursue an objective” that the lawyer found repugnant.  It was believed that tying the right to withdraw to the “objectives” of litigation was too narrow – a lawyer should be able to seek to withdraw when a client seeks to do things a lawyer believes is repugnant even if it does not directly relate to the objectives of representation.

Connie Ley owned Bela – a german shepherd dog.  Ley, who was getting older, went to Larry Lawyer and asked him to draft her will.  Most of the provisions in the will were uncontroversial.  However, when it came to Bela, Ley wanted to include a provision stating that at her death Bela would be euthanized and the ashes of Bela and Ley would be mixed together.  Lawyer objects to the provision – and does not feel that he can include a provision in the will to kill a healthy pet.  Is Larry justified in seeking to withdraw?  [based on “Fate Decided: Dog Won’t be Killed as Requested by Owner’s Will”: https://www.usatodaycom/story/news/weird/2014/12/24/bela-wont-die-as-requested-in-owners-will/20867875/]

Yes.  Even though the actions that the client wants the lawyer to take actions that would be legal (pets are considered property), the lawyer is justified in seeking to withdraw if the client finds the idea of including a provision that would euthanize a healthy pet repugnant.  Note, however, that while this repugnant action actually relates to the objectives of representation, the rule only requires that the client’s actions be repugnant – not that it relate to the representation.

The idea of repugnance and “fundamental disagreement” is not satisfied just because the client does not take the lawyer’s advice – particularly in areas where the client has absolute autonomy:

Buddy Nichols was charged with armed robbery of a convenience store.  At trial Nichols wanted to testify in his own defense.  His trial counsel felt that trial went well and did not want Nichols to testify because it would open him up on cross-examination related to prior convictions.  When Nichols continued to insist on testifying, the attorney said he would withdraw if Nichols insisted on testifying.  Should the attorney be allowed to withdraw if the client continues to insist on testifying? [Nichols v. Butler, 953 F.2d 1550 (11^th Cir. 1992)]

No.  Even though the attorney and client here have a fundamental disagreement over whether the client should testify, the decision of whether a criminal defendant will testify is left solely to the client.  See Rule 1.2(a)(“In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to… whether the client will testify.”).  As the court notes:  “The decision by a defendant to exercise his fundamental right to testify at his own criminal trial, without more, is clearly not a sufficient reason for his attorney to seek to withdraw, even where that decision is against the advice of counsel.”  In other words, the repugnance/disagreement must be about something the client does not have the absolute right to decide.      

Client has failed to fulfill an obligation owed to the lawyer after notice

A lawyer can seek to withdraw if a client has failed to fulfill an obligation to the lawyer – and the lawyer has given notice to the client that the lawyer will seek to withdraw if the client does not satisfy the obligation.  By far the most common situation where this provision is cited as a justification for withdrawal is where the client has failed to pay the lawyer’s bill.  The second most common situation is where the client fails to return the lawyer’s phone call or reply to requests for information from the lawyer.

Blech retained Proskauer to represent him.  As the case progressed, Blech failed to pay the legal fees that were due.  Gave notice to Blech that he would withdraw if Blech did not pay his bill.  Proskauer filed a motion to withdraw for failure to pay the legal fees. Should Proskauer be allowed to withdraw? [Brandon v. Blech, 560 F. 3d 536 (6^th Cir. 2009)]

Yes.  The court noted that the client had been given three weeks’ notice, and there were no looming deadlines. The court did note that if there had been deadlines and the lawyer was using the deadlines to hold the client “over a barrel” to demand payment, the request could be rejected.  The court also noted the justification for allowing a lawyer that had not been paid to seek to withdraw:  “It simply expects too much of counsel to expend the additional energy necessary to go to trial, and to front the necessary expenses, without any real assurance that he will be paid for any of it, especially where he already is owed a substantial sum and the client has violated the written fee agreement.”    

Continued representation would result in an “unreasonable financial burden” on the lawyer or rendered unreasonably difficult by the client

Rule 1.16(b)(6) provides two reasons for withdrawing that are very important to lawyers:  where continuing the representation would place an “unreasonable” financial burden on the lawyer or where the client has made continued representation “unreasonably difficult.” To give an example of a situation where a financial burden has justified withdrawal consider this case:  a law firm represented defendants in a case that had lasted for years, and the last thing that was left to do was findings of fact and conclusions of law.  Before doing this final step, the law firm sought to withdraw claiming it was owed $5,000,000 in unpaid legal fees and it would be an unreasonable financial burden to require them to continue.  The client did not dispute the fees – and did not dispute that it would not (and could not) pay them.  Instead, the client argued that the law firm was particularly well situated to conclude the litigation and that the client had already paid $7,000,0000 in legal fees.  The court noted that civil litigants are not entitled to free legal representation and that $5,000,000 in fees would place an unreasonable financial burden on the law firm – and granted the motion to withdraw.[1]

One important thing to remember, however, is that ultimately the decision as to whether a lawyer should be allowed to withdraw is in the discretion of the trial court.  In Haines v. Liggett Group, Inc., the law firm entered into a contingency fee agreement to represent clients in claims against tobacco companies.[2]  When it became clear to the law firm that it was going to accumulate much more in attorneys fees than the case was worth, the law firm sought to withdraw – citing an unreasonable financial burden.  The court denied the request to withdraw citing two factors.  First, when “an attorney agrees to undertake the representation of a client, he or she is under an obligation to see the work through to completion.”  The court went on to note: 

An attorney has certain obligations and duties to a client once representation is undertaken.  These obligations do not evaporate because the case becomes more complicated or the work more arduous or the retainer not as profitable as first contemplated or imagined.  Attorneys must never lose sight of the fact that the professional is a branch of the administration of justice and not a mere money-getting trade…. The lawyer should not throw up the unfinished task to the detriment of his client….[3]

The second reason the court gave for denying the withdrawal motion was that the fact that fee agreement was a contingency agreement.  The court noted that the lawyer knew that there was a risk that the case could be less lucrative than the lawyer hoped.  It is not a basis for withdrawal that the case has turned out to be not as lucrative as the law firm hoped in the beginning.[4]  The take away – do not assume because a case has become unprofitable that a court will automatically grant the motion to withdraw.

The second bases for seeking withdrawal is when the client has rendered the representation unreasonably difficult.  Clients come in all shapes and sizes – and sometimes a client can make a case very difficult for a lawyer to prosecute.  Perhaps the client has decided that he is not happy with the lawyer’s actions and will just draft his own documents and appear in court himself, and expect the lawyer just to sign-off on what the client prepared.[5]  That is an unreasonable client.  Another area where courts have found that client has made representation unreasonably difficult is where the lawyer cannot get in contact with the client or the client refuses to respond to reasonable requests from the lawyer.

Other “good cause”

The final permissive basis for withdrawal is other “good cause.”  This option is intended to cover situtations that do not precisely fit into one of the other categories, but is a situation where a court is willing to allow a lawyer to withdraw.  Usually this provision is cited along with one of the prior justifications, but it can be a stand-alone reason for withdrawal.

[1] City of Joliet v. Mid-City Nat. Bank of Chicago, 998 F.Supp.2d 689 (N.D. Ill. 2014).

[2] 814 F.Supp. 414 (D.N.J. 1993).

[3] Id. at 424 (quoting Kriegsman v. Kriegsman, 375 A.2d 1253, 1253 (N.J. Ct. App. 1977)).

[4] The court reached a similar outcome in McDaniel v. Daiichi Sankyo, Inc., 343 F.Supp.3d 427 (D.N.J. 2018).  In McDaniel, the plaintiff was a member of a class and when the class settled, the plaintiff opted out.  The law firm sought to withdraw from continuing to represent the plaintiff – pointing the the cost of the litigation.  The court denied the request to withdraw:  “The fact that it will be expensive to litigate the case is not a surprise to counsel.  They knew this when they undertook to represent plaintiff.  If counsel is now ‘scared off’ by the prosect of paying for trial, counsel should not have undertaken the representation of plaintiff in the first instance.” Id. at 432.

[5] N.M. Ethics Op. 1995-1 (1995).