Breaking ties with a client

by Trey Ross, Esq.breaking ties with client photo

Lawyer:

I’ve been working on behalf of a client for about three weeks. However, the client has become extraordinarily demanding and impatient. Needless to say, I’m not enjoying our interactions these days.

I think its best that the client and I part ways before matters get any worse. Am I allowed to break ties with a client before the legal issue is resolved?

Brief Answer:

Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. However, Md. Rule 1.16 and Md. Rule 2-132 govern the withdrawal of a lawyer from a case.

Guidelines for when withdrawal is mandatory and when withdrawal is optional are governed by Md. Rule 1.16. Also, the rule for determining when a lawyer may withdraw from an active proceeding is covered by Rule 2-132.

 

  1. Times when a lawyer’s withdrawal is mandatory

According to Maryland  Rules of Professional Conduct (“Rule”) 1.16(a), a lawyer must cease representation of a client if “(1) the representation will result in violation of the Maryland Lawyers’ Rules of Professional Conduct or other law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or (3) the lawyer is discharged.”[1]

An example of a violation of Rule 1.16(a)(1) occurred in Atty. Griev. Comm’n of Md. v. O’Leary.[2] In O’Leary, a young female attorney represented a man in a divorce and child custody action.[3] During the course of the proceedings, the attorney began a romantic relationship with her client and allowed the man to move into her home.[4] Subsequently, the attorney continued to represent the client and negotiate his child support obligations while simultaneously paying the client’s child support.

These actions were a clear violation of Rule 1.7(a) which provides: “…a lawyer shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if: . . . (2) there is a significant risk that the representation of one or more clients will be materially limited…by a personal interest of the lawyer.[5]

Also, an example of a violation of Rule 1.16(a)(2) occurred in Atty. Griev. Comm’n v. Patton.[6] In Patton, an attorney suffered from an addiction to a narcotic known as oxycodone.[7] Despite his addiction, the attorney continued to enter agreements to represent clients in various criminal law matters.[8] However, the attorney failed to attend his clients’ court proceedings, and also failed to respond to judges, clients, and opposing counsel.[9] As a result, the court held that the attorney violated Rule 1.16(a)(2) by neglecting to withdraw from representing his clients.[10]

Since withdrawal is mandatory under the above mentioned circumstances, failure to withdraw can lead to sanctions such as suspension or disbarment.

Note: If you are a lawyer suffering from a drug addiction, you don’t have to face your problems alone. The MSBA’s Lawyer Assistance Program was created to help you with your treatment and recovery. Contact Lisa Caplan, Program Counselor, by phone at 443-703-3042 or by email at lcaplan@msba.org.

You may also benefit from visiting the organization’s website. To do so, go to http://www.msba.org, click on “departments” then click on “Lawyer Assistance Program.”

 

  1. Times when a lawyer’s withdrawal is optional

Although the situations above highlight times when a lawyer must withdraw his representation, the rules also mention a number of instances when withdrawal is optional:

According to Rule 1.16(b), in instance other than those involving tribunals, withdrawal is optional if:

“(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer’s services to perpetrate a crime or fraud;

(4) the client insists upon action or inaction that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) 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;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.”[11]

The rules listed above are pretty self-explanatory. As a result, there have not been many cases or ethics opinions published on the topic.

Still, a careful reading of the published cases and the comments that follow the rule highlight two ethical concerns that should be used when examining actions under Rule 1.16. First, a critical consideration is whether the lawyer’s withdrawal will have an adverse impact on the client’s interest.[12] Second – and even more important – is whether the client has misused the lawyer’s services in the past.[13] If so, the lawyer may withdraw regardless of the effect the withdrawal has on the client’s interest.[14]

Thus, a lawyer has the right to inform the client of his intent to cease representation, so long as the attorney was not appointed by a tribunal,[15] and the attorney is not currently representing the client during an active proceeding.[16]

See Section C below for the process of withdrawing during active court proceedings.

 

  1. Withdrawal during court proceedings

In addition to the general rule regarding withdrawal discussed above, Rule 2-132 governs withdrawal during court proceedings.[17] As indicated in a state ethics opinion, in general,  Rule 2-132 “permits an attorney to strike his appearance (i) when the client has another attorney of record, or (ii) by motion accompanied by the client’s written consent or the moving attorney’s certificate that notice of intent to withdraw from representation has been mailed to the client at least five days prior the filing of the motion.”[18]

Still, the Court may deny the motion if withdrawal of the attorney’s appearance would cause undue delay, prejudice, or injustice.[19]

As long as the attorney provides the client with ample notice of his intent to withdraw, the court has tended to permit the attorney to end his representation of the client. For example, in Serio v. Baystate Props., the court approved an attorney’s withdrawal on the day of trial since the attorney had given the client notice of her intent to withdraw eight weeks prior to the day of trial.[20] Likewise, in Das v. Das, the court upheld an attorney’s right to withdraw since the attorney notified the client of her intent to withdraw approximately nine weeks prior to a pendente lite child support hearing.[21]

So, an important consideration to the court’s determination of whether withdrawal during a proceeding will cause undue delay, prejudice, or injustice is whether the client was given sufficient notice of the need to find a new attorney prior to a hearing or trial.

 

Summary:

Rule 1.16 sets guidelines for determining when withdrawal is mandatory and when it is optional. In addition, Rule 2-132 provides the appropriate means of withdrawing during a legal proceeding. A lawyer interested in withdrawing should consider each of these rules and their accompanying comments before acting.

[1] Maryland Rules of Professional Conduct 1.16(a) (2013).

[2] 69 A.3d 1121 (Md. 2013).

[3] Id.

[4] Id.

[5] Maryland Rules of Professional Conduct 1.7(a) (2013).

[6] 69 A.3d 11 (Md. 2013)

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Maryland Rules of Professional Conduct 1.16(b) (2013).

[12] Id. at cmt. 6 (providing that a lawyer who has been discharged by a client with diminished capacity, should still make a “special effort to help the client consider the consequences and may take reasonably necessary protective action…”); Attorney Grievance Comm’n v. Dietz, 629 A.2d 678 (Md. 1993) (reiterating that an important consideration when determining if a lawyer may withdraw is whether it can be accomplished without material adverse effect on the interests of the client).

[13] Maryland Rules of Professional Conduct 1.16 cmt. 7 (providing that “withdrawal is also permitted if the lawyer’s services were misused in the past even if that would materially prejudice the client”).

[14] Id.

[15] Maryland Rules of Professional Conduct 1.16(c) (2013) (providing that “[a] lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation”).

[16] Md. R. 2-132 (Michie, LEXIS through 2013) (providing the procedure for withdrawing representation during an active proceeding).

[17] Id.; Md. State Bar Ass’n Comm. on Ethics, Op. 1994-8 (1994) (providing that “the legal aspects of withdrawal of an attorney’s appearance in a proceeding in this State is governed by the Maryland Rules of Procedure, and specifically Rule 2-132”).

[18] Id.

[19] Id.

[20] 60 A.3d 475 (Md. Ct. Spec. App. 2013) (providing that the trial court did  not abuse its discretion when it allowed an attorney to withdraw representation since the attorney notified the client that she was ending her private practice to work for the federal government eight weeks prior to the trial).

[21] 754 A.2d 441 (Md. Ct. Spec. App. 2000).

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