There are times during the representation of a client in a pending matter that an attorney can or even must withdraw as counsel.
Prior to litigation, the ideal path is less complex — a simple letter combined with a telephone call seems to suffice provided termination of representation does not materially adversely affect the interest of the client.
A reviewing court may well find terminating pre-litigation representation on the relative eve of the statute of limitations as being ethically prohibited and rendering withdrawn counsel having breached his or her duty to his or her client provided the client did not contribute to the statute of limitations ultimately elapsing on a meritorious claim (such as by not seeking substitute counsel).
During litigation, however, withdrawal may only be accomplished upon leave of court.
In filing the motion for leave of court to be relieved as counsel, there might exist an inherent conflict of interest; that is, the desire of counsel to withdraw may conflict with that of counsel’s client. This conflict and the nature of the withdrawal proceeding may instinctively give rise to counsel’s felt need to be persuasive lest withdrawal be denied.
This attempt at persuasion may give rise to an additional conflict surrounding the attorney-client privilege. Further, if a motion to withdraw is occasioned by the threat of sanctions for “frivolous” litigation, there may exist a conflict between counsel’s self-interest and duty to the court/opposing parties with counsel’s fiduciary obligations (i.e., the obligation to subjugate counsel’s self-interest for that of one’s client).
In all situations, a conflict with one’s client is never a good thing; therefore, a formal motion to withdraw as counsel (being a formal and sometimes adversarial airing of that conflict) will (and perhaps should) never be pleasant.
Pursuant to RPC 1.16(a), counsel “shall” withdraw from representation: (1) where representation will result in an ethical violation; (2) the lawyer becomes incompetent; or (3) the lawyer is discharged. Even under those circumstances, a lawyer must continue to represent a client when ordered to do so. As indicated previously, even when discharged, if a matter is in litigation, a motion to be relieved as counsel must still be filed (a lawyer could be forced to continue to represent a client who has terminated that attorney).
Pursuant to RPC 1.16(b), a lawyer “may” withdraw from representing a client if:
• The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
• The client has used the lawyer’s services to perpetrate a crime or fraud;
• The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has fundamental disagreement;
• 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;
• The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
• Other good cause for withdrawal exists.
In Rusinow v. Kamara, 920 F.Supp 69 (1996), the New Jersey District Court amplified RPC 1.16(b) to consider four principal criteria: (1) the reasons why withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) the harm withdrawal might cause to the administration of justice; and (4) the degree to which withdrawal will delay the resolution of a case.
Pursuant to RPC 1.16 Comment 1, a matter should not be accepted unless it is capable of being completed. Pursuant to Comment 9, even if unfairly discharged, a lawyer must take all reasonable steps to mitigate the consequences to the client.
Generally, the most common is the most ethically perilous ground for withdrawal: a case that sounded good at intake has gone bad in litigation, but the client desires ongoing prosecution over his or her counsel’s contrary suggestion vis-à-vis discontinuance.
Pursuant to Comment 3, “the court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer’s statement that ‘professional considerations require termination of the representation’ ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 [confidentiality of information] and 3.3 [candor towards the tribunal].”
Between RPC 1.16, 1.16(b), 3.3 and the possibility that ongoing litigation could subject counsel to sanctions under Pa.R.C.P. 1023.1, yet cognizant that counsel must seek leave to withdraw notwithstanding explanatory Comment 3 per Rusinow, a motion to withdraw is an arduous task.
In Williams v. Theodore Q. Thompson Associates, 2010 WL 5576215 (Pa.Com.Pl. Mont.), the plaintiff repetitively objected to her legal malpractice counsel’s motions to be relieved as counsel because the underlying fee agreement was contingent notwithstanding that the legal malpractice defendant was uninsured and without assets. The plaintiff contended that her counsel should have performed a “due diligence search” of the defendants’ assets and insurance at the outset, and the plaintiff should not now be “penalized for her counsel’s precipitous and greedy behavior.”
In examining the contingent-fee agreement, the court initially denied counsel’s motion as finding that the agreement’s permission for counsel to withdraw “for whatever reason” did not satisfy the “good cause” standard of RPC 1.16(b)(7). Notwithstanding that it was a contingent-fee agreement, counsel then demanded the plaintiff advance all ongoing prosecution costs — giving rise to a second motion to withdraw. The court denied that motion but held that the fee agreement being contingent does not as a matter of law place the burden on counsel to advance all costs. The second motion to withdraw was denied with the court ordering the plaintiff to extend those litigation costs.
When the plaintiff failed to extend costs, the court granted counsel’s third motion, finding that “it would be patently unfair and contrary to the intendment of the agreement read as a whole to deny counsel’s request to withdraw [while requiring] him to continue to advance costs of the litigation.”
Incidentally, the court denied the plaintiff’s request that counsel should be referred to the district attorney and disciplinary counsel. In fact, such request “besp[oke] a deterioration of the relationship between client and counsel justifying counsel’s withdrawal from the case for ‘other good cause.’”
Suffice to say, as counsel for the plaintiffs in Williams and Rusinow found, Comment 3 (suggesting that the mere invocation of professional considerations should, in and of itself, warrant the grant of a motion to withdraw) appears impractical. Likewise, counsel are often forced to explain themselves notwithstanding the attorney-client privilege. Thus, a sterile motion requesting withdrawal should result in an in camera hearing whereby those reasons can be given and that jurist may adjudicate that motion without counsel’s fear that he or she may run afoul of his or her ethical, contractual and other legal obligations. That said, once adjudicated, that jurist should sua sponte recuse so that the client’s later proceedings need not be unfairly influenced by the withdrawal hearing.
While I have here suggested the ideal motion to withdraw proceeding, I admit that I have never before seen it performed. As clients continue to seek from their counsel what cannot realistically be gained, counsel will need to withdraw merely as a matter of self-preservation, and as courts will continue to ask “why,” it appears the motion to withdraw ethical dilemma will continue to go around and around without ever stopping at a point where the triumvirate of conflicting interests can be satisfied. •
Matthew Weisberg is the managing partner of Weisberg Law. He focuses the firm’s practice on consumer and individual rights throughout Pennsylvania and New Jersey. Weisberg Law represents victims of legal malpractice and other professional negligence resulting in financial injury, fraud, civil rights violations, consumer abuse and foreclosure actions.