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Firing your client should be a rare occurrence. But when counsel withdrawal is the last step in your attorney-client relationship, it needs to be done properly and precisely in order to avoid problems. It is critical to take reasonable steps to avoid foreseeable prejudice to the rights of the client. These steps are both ethical and mechanical. Begin by consulting the California Bar Rules of Professional Conduct. Rule 3-700 sets forth the basic ethical requirements involved when parting ways with a client. Always keep in mind the nature and status of your representation. Withdrawing from a case that is heading for trial is different than withdrawing from a non-litigation matter. If termination of your employment is required by the rules of any tribunal, you must also comply with Rule of Professional Conduct � 3-700(A)(1). A tribunal can include any federal or state agency, court, arbitration, administrative hearing, workers’ compensation hearing, or any civil or criminal matter pending before a judge. In terms of client status, be sensitive to whether your client is an individual, corporation, union or class member. Depending on the particular capacity of your client, the withdrawal procedure will require different levels of obligation. Rule 3-700(A)(2) has four basic requirements: (1) giving due notice to the client; (2) allowing time for employment of other counsel; (3) properly returning all of the papers and property of the client; and (4) promptly refunding any part of a fee paid in advance that has not been earned. NOTICE OF COUNSEL WITHDRAWAL Giving notice to the client is not always that simple. Generally, courts uphold the client’s right to assume representation unless notice clearly establishes withdrawal. In situations where no tribunal is involved, notice of termination is crucial to sever the relationship. The notice, which should be in writing whenever possible, should be clear and unambiguous. Oral notices are rarely satisfactory and are often misinterpreted. See Christopher R. Hickey, (1990) 50 Cal.3d 571. The notice letter should be as broad as possible and should not reveal any client privileges when giving the reasons for withdrawal. Rules of Professional Conduct � � 3-700(B) and 3-700(C) provide reasons for mandatory withdrawal and permissive withdrawal, respectively. However, putting these “reasons” into a withdrawal letter, or later in your declaration to withdraw to a tribunal, may risk divulging a privileged communication. Make the reasons for counsel withdrawal as general as possible and base them on irreconcilable differences and good cause. Another necessary component of the withdrawal letter is to advise the client of any and all pending deadlines. All calendar dates need to be identified, and the significance of the deadlines needs to be explained. Many clients do not know what a case management conference is or that it will jeopardize the case if they fail to attend a preliminary hearing. If there are imminent deadlines, for whatever reason, extensions or continuances need to be secured with opposing counsel. Even if the case does not involve litigation, there may still be deadlines for performance that need to be clearly defined in the withdrawal notice. Make sure the client receives the letter. Use return-receipt postage. If a client is currently employing another attorney for other matters, make efforts to involve that attorney in your withdrawal. Sending a letter of notice to your client is key; however, acknowledgment of withdrawal from the client’s additional counsel is extremely helpful. REPLACEMENT COUNSEL Allowing time for employment by another attorney can be a problem unless you allow a reasonable deadline for your client to find replacement counsel. Assuming your client is difficult to work with, it is likely another lawyer will feel the same way, which will prolong the amount of time it may take your client to secure willing and able counsel. Thus, always specify a reasonable date of withdrawal in the notice letter to facilitate a smooth transfer of the client’s case. Should you assist clients by referring them to another attorney? Unless you are willing to run the risk of a negligent referral suit, conventional wisdom says “never.” If the time for transfer is prolonged due to the client’s disapproval of withdrawal, enlist the tribunal for help setting a date in order to be officially removed from the client’s case. MOTION TO WITHDRAW Litigated matters require the additional condition of “permission to withdraw.” California Rule of Court � 376 sets forth the mechanical requirements under California Code of Civil Procedure � 284 to be relieved as counsel. The tribunal requires a notice motion to be served on the client and all other interested parties, including a date for a hearing. Although no points and authorities are required, a declaration of counsel is mandatory. If the client consents to withdrawal, the procedure for his or her consent should be followed according to California Code of Civil Procedure � 284(1). However, it is more likely that a client will refuse to give consent, and a declaration explaining irreconcilable differences will be necessary. In this situation, California Code of Civil Procedure ��(2) is employed, which requires a declaration in general terms as to why the withdrawal is requested by counsel. The declaration needs to be as carefully worded as the withdrawal letter so as to not breach any confidentialities. San Francisco criminal attorney James Campbell of Campbell & Demetrick says the declaration used to withdraw in a criminal matter should be very basic. “The mechanics of withdrawal in a criminal case is similar to a civil matter. There are distinctions, however, when it comes to the explanation as to the reasons. Criminal judges do not normally probe too deep into the reasons for fear of a possible harm to the client’s confidentiality and defenses.” In addition to the declaration to withdraw required under CCP � 284, the code also requires the proposed order to specify all hearing dates, including trial dates. The courts are more likely to grant the motion if they feel the client is not jeopardized in any way by the withdrawal. Having a substitute attorney at the time of the motion, or ample time to prepare the case, are touchstones the court will weigh in favor of granting the motion. The court may require additional action by counsel to secure the withdrawal or may deny the motion until certain issues are resolved. CLIENT PAPERS AND PROPERTY Returning the papers and property of the client can be a pitfall for the unwary. California Bar Rule of Professional Conduct � 3-700(D) provides the proper procedure for returning client files. The scope of client papers and property is purposefully broad. Essentially, it includes all items necessary to represent the client’s interests. The code requires the prompt release to the client or the new attorney, even if the client has not paid for them. See Weiss vs. Marcus, (1975) 51 Cal.App.3d 590. This includes physical evidence and expert reports. In cases involving extensive documents, counsel will have to bear the expense of copying all file materials, particularly in acrimonious splits where file materials may be necessary to defend a claim of malpractice. What about assisting the new attorney in getting up to speed? In addition to providing all of the client’s documents, the attorney must also provide new counsel with any information not reduced to writing without which the client could be prejudiced. Most lawyers are happy to be rid of the client and won’t charge to provide initial interpretations or legal arguments and answer a few questions for the new attorney. After termination, be careful to maintain your withdrawal capacity in providing initial help to the new lawyer. RETURN CLIENT’S MONEY Finally, California Rule of Professional Conduct � 3-700(D)(2) requires counsel to refund any part of a fee paid in advance that has not been earned. This section is the most likely to ignite disputes between the attorney and client. The numerous fee structures used in California may raise issues as to how much of a fee is actually earned. Flat fees, fixed fees and contingency fees can confuse matters. San Francisco legal malpractice attorney Merri Baldwin of Rogers, Joseph, O’Donnell & Phillips says, “Attorneys’ failure to promptly return client fees is one of the most frequent causes of disciplinary action by the State Bar.” Some attorneys advise returning all remaining fees to pacify the client and avoid a possible malpractice suit. Never try to bargain with the client’s unearned fees to obtain a release or hold the monies hostage to obtain something in exchange from the client. CALIFORNIA BAR ETHICS HOTLINE When in doubt, contact the California Bar Ethics Hotline. The hotline is a confidential research service for attorneys that helps lawyers identify and analyze their professional responsibilities. It has been the State Bar’s most popular service since 1983. Staff members assist attorneys in reaching informed decisions about their professional responsibility by answering questions about statutes, rules, and case and Bar opinions. The hotline accommodates attorneys who wish to remain anonymous. Last year, the hotline fielded about 21,000 calls. Approximately 7 percent of the calls were related to questions about withdrawal from employment. A hotline staff member can be reached at (800) 238-4427. Robert S. Niemann is a partner with Seyfarth Shaw in San Francisco and specializes in commercial litigation, including business torts, contracts, product liability and Business & Professions Code § 17200 matters. He also conducts private mediations and arbitrations. He can be reached at 415-397-2823 or [email protected]

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