Just like Linda Ronstadt crooned, sometimes when they’re “No Good,” it’s time to end or avoid the relationship. If you’ve made that difficult decision, here are some best practices told through some of our favorite breakup songs to help guide you in declining and terminating representation of clients.  

“You Oughta Know” whether representation is impermissible 

Before accepting representation, attorneys must evaluate the Rules of Professional Conduct, especially Rules 1.7 – 1.10 regarding conflicts of interest.  

Rule of Professional Conduct 1.16 guides attorneys on both mandatory and permissive declination or termination of representation. 

Section (a) establishes three criteria for when a lawyer must decline or terminate representation:  

1. 1. Representation would violate the Rules of Professional Conduct or other laws; 
   2. The attorney is physically or mentally incapable of representing the client; or  
   3. When the attorney is discharged by the client or person with authority. 

Under item 1, if a conflict of interest exists, attorneys must decline representation or, if appropriate, obtain informed consent to the conflict from the affected parties from the outset. 

In one recent disciplinary matter, an attorney was sanctioned for improperly representing a client after a conflict with a former client arose. In Disciplinary Counsel v. G.N. decided in 2023, the attorney represented a husband and wife jointly in a minor civil matter. However, G.N. later began a romantic relationship with the wife. Now I’m here to remind you of the mess he made by then representing wife in a divorce complaint filed against husband. The Court found that his representation violated Rule 1.7 and that he was required to withdraw or decline representation particularly in the divorce matter under R. 1.16. 

Beyond disciplinary consequences, unresolved, undisclosed, and un-waived conflicts of interest remain a leading cause of legal malpractice claims.  

Permissible withdrawal or declination of representation is addressed under Section (b) of Rule 1.16. The rule identifies nine criteria when withdrawal or declination of representation is allowed (but not required), some of which are identified below:  

1. 1. For any reason so long as withdrawal can be accomplished without material adverse effect on the interests of the client [See also Comment 8A];  
   2. The client uses the attorney’s services to commit crime or fraud; 
   3. The client insists on taking actions that are repugnant;  
   4. The client fails to substantially fulfill obligations, after being advised of consequences, or that continued representation will be unreasonably difficult for the attorney (including financially burdensome);  
   5. For any reason so long as the client gives informed consent to the termination of representation. 

Are you ready to “Go Your Own Way” from a client who isn’t substantially fulfilling their obligations?  

Especially when you’ve already explained the importance of representation and attempted to resolve the issues, here are some best practice pointers: 

“He doesn’t love me, so I tell myself: I got New Rules” 

If you’ve filed a Notice of Appearance in active litigation, you will need to comply with your court’s local rules in seeking withdrawal. Often, local rules require such motions to be filed a fixed number of days prior to a hearing and may require specific components in the motion and service on the client. The love might be lost between attorney and client but that doesn’t extinguish obligations to properly withdraw. 

“Don’t Speak, I know just what you’re sayin’” 

Be wary of including more information than necessary in court filings or other communications with third parties when withdrawing as counsel of record. Remember – your duties of confidentiality still apply! 

In Columbus Bar v. A.B. decided in 2021, the attorney improperly disclosed confidential client information and cast her client in a poor light when litigating a Motion for Leave to Withdraw.  

One best practice recommendation is to reference the section of R. 1.16 when withdrawing from representation and tactfully guide the court into an understanding. Fully explaining the breakdown in the relationship with the client to the court is rarely, if ever, necessary; and countering a client’s assertions by disclosing confidential information is likely not an appropriate basis for violating R. 1.6’s obligations of confidentiality. ABA Formal Opinion 476 (December 2016) has more on this discussion and encourages judges to also consider the client’s rights to confidentiality when evaluating a motion to withdraw. So please stop explainin’. 

You “Got to Give It Up”  

When ending representation, you must promptly return the client’s property including unearned fees. 

Several recent disciplinary matters have identified a violation of professional conduct rules because counsel failed to return or account for unearned fees. If you or the client are terminating the relationship, the risk is now higher for a grievance complaint. Don’t exacerbate the problem by failing to return the portion of the fee or retainer that has not been earned. We’ll have more on billing and collecting unpaid fees in a future article but remember that your written representation agreement should address billing upon termination, too. 

Tell your client key information before they “Hit the Road, Jack” 

If you’ve been discharged but the matter isn’t concluded, communicate to the client in writing any upcoming deadlines, court dates, or necessary next steps (e.g. executing a document, completing a qualified domestic relations order, filing an extension) and strongly encourage the client to retain new counsel. See Comments 8A and 9 to Rule 1.16. And don’t you come back no more. 

“We Are Never Ever Getting Back Together”

A common refrain you might hear from OBLIC’s Loss Prevention team is, “once out, stay out!” Once you’ve declined or terminated representation, stick to it. We regularly see problems from re-initiated representation after the attorney previously declined the matter or terminated representation of the client. There was a good reason that you didn’t accept the case or parted ways with the client and re-engaging often deviates from normal processes. Besides, Taylor said so. 

Applying Rules of Professional Conduct and learning from others’ missteps, we hope you’ll feel more confident allowing a client to “go their own way” when necessary. As always, call your OBLIC Loss Prevention Hotline – we’re here to help! 

This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.