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Prof Responsibility • Withdrawal
PR#091
Legal Definition
Where a lawyer permissively withdraws, they must (1) provide timely notice to the client, and (2) promptly return any unspent fee and expense advances, as well as all property and material papers belonging to the client (including work product).
Plain English Explanation
When an attorney wants to withdraw from representing a client, but it's not mandatory, this is known as permissive withdrawal. Even though the attorney is not required to withdraw, they still have to follow specific steps to do so properly:
(1) Timely Notice: The attorney must give the client enough notice to allow the client to find another lawyer. This is important because suddenly leaving a client without legal representation could harm the client's case or legal rights. For example, if a court hearing is coming up, the attorney needs to inform the client well before the hearing, not just a few days before. The goal is to make sure the client has time to get new legal help.
(2) Prompt Return of Client Property: The attorney must quickly return any property, including unspent fees and important papers, to the client. This includes anything the attorney was holding for the client, like documents, evidence, or any funds that were advanced for legal services. For example, if the client gave the attorney money to cover court fees or other expenses, and some of that money wasn't used, the attorney has to return it right away. The attorney should also return any work product they prepared during the case, which the client might need for their new attorney.
(1) Timely Notice: The attorney must give the client enough notice to allow the client to find another lawyer. This is important because suddenly leaving a client without legal representation could harm the client's case or legal rights. For example, if a court hearing is coming up, the attorney needs to inform the client well before the hearing, not just a few days before. The goal is to make sure the client has time to get new legal help.
(2) Prompt Return of Client Property: The attorney must quickly return any property, including unspent fees and important papers, to the client. This includes anything the attorney was holding for the client, like documents, evidence, or any funds that were advanced for legal services. For example, if the client gave the attorney money to cover court fees or other expenses, and some of that money wasn't used, the attorney has to return it right away. The attorney should also return any work product they prepared during the case, which the client might need for their new attorney.
Hypothetical
Hypo 1: Bob represents Sam in a divorce case. Sam becomes increasingly hostile and verbally abusive toward Bob, making it very difficult for Bob to effectively represent him. Bob decides to withdraw. Result: Bob must first determine if the court requires permission to withdraw. Assuming it does, Bob should file a motion to withdraw, explaining the situation without revealing confidential information. Bob must give Sam reasonable notice of his intent to withdraw. He should prepare all files and documents to be returned to Sam, and provide Sam with a list of pending deadlines. Bob must continue representing Sam until the court grants the motion to withdraw.
Hypo 2: Bob is representing Sam in negotiating a business deal. Sam reveals to Bob that he plans to use the contract to defraud his business partner and asks Bob to help. Bob decides to withdraw immediately. Result: Even though this is a non-litigation matter, Bob must still give Sam reasonable notice of his intent to withdraw. Bob should document his reasons for withdrawal without revealing client confidences. He must return any unearned fees and provide Sam with all relevant documents and information about the current status of the matter. Bob should advise Sam of any imminent deadlines and suggest he seek new counsel promptly.
Hypo 3: Bob agreed to represent Sam pro bono in seeking asylum. Bob learns that Sam lied about being indigent but realizes this isn't grounds for withdrawal under the rules. Result: Despite Sam's dishonesty, Bob does not have proper grounds for permissive withdrawal. Bob must continue the representation unless another valid reason for withdrawal arises or Sam consents to Bob's withdrawal. Bob may discuss his concerns about the misrepresentation with Sam but must uphold his professional obligations to the client. This may sound like slavery, since Bob is being forced to work for free, but note that Bob voluntarily agreed to represent Sam without charging at the beginning. Once an attorney agrees to represent a client, even pro bono, they have a professional obligation to continue the representation unless a valid ground for withdrawal exists under ABA Rule 1.16.
Hypo 2: Bob is representing Sam in negotiating a business deal. Sam reveals to Bob that he plans to use the contract to defraud his business partner and asks Bob to help. Bob decides to withdraw immediately. Result: Even though this is a non-litigation matter, Bob must still give Sam reasonable notice of his intent to withdraw. Bob should document his reasons for withdrawal without revealing client confidences. He must return any unearned fees and provide Sam with all relevant documents and information about the current status of the matter. Bob should advise Sam of any imminent deadlines and suggest he seek new counsel promptly.
Hypo 3: Bob agreed to represent Sam pro bono in seeking asylum. Bob learns that Sam lied about being indigent but realizes this isn't grounds for withdrawal under the rules. Result: Despite Sam's dishonesty, Bob does not have proper grounds for permissive withdrawal. Bob must continue the representation unless another valid reason for withdrawal arises or Sam consents to Bob's withdrawal. Bob may discuss his concerns about the misrepresentation with Sam but must uphold his professional obligations to the client. This may sound like slavery, since Bob is being forced to work for free, but note that Bob voluntarily agreed to represent Sam without charging at the beginning. Once an attorney agrees to represent a client, even pro bono, they have a professional obligation to continue the representation unless a valid ground for withdrawal exists under ABA Rule 1.16.
Visual Aids
Related Concepts
In California, when does a lawyer have a mandatory Duty to Withdrawal or decline representation?
In California, when may an attorney choose to withdraw from representing a client (permissive withdraw)?
When does a lawyer have a mandatory Duty to Withdrawal or decline representation?
When may an attorney choose to withdraw from representing a client (permissive withdraw)?
