OBLIC commonly fields questions concerning withdrawing from representation. These questions typically arise from three scenarios:
- The client is not paying bills;
- The client is not listening to advice;
- The client threatened to fire the insured.
These situations fall within the provisions of Rule 1.16(b) of the Ohio Rules of Professional Conduct.
For a client who refuses to pay attorney’s fees that are due, Rules 1.16(b)(5) and (6) permit the lawyer to terminate the representation under certain circumstances. Section (5) requires that the client substantially fail to fulfill its financial obligation to the lawyer and be given reasonable warning of withdrawal unless the obligation is satisfied. Section (6) permits withdrawal if the continued representation will result in an unreasonable financial burden.
Rules 1.16 (b)(2),(4) and (6) permit an attorney to withdraw when a client persists in activity the lawyer believes is illegal or fraudulent, when a client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement, or when the representation has been rendered unreasonably difficult by the client.
If a client threatens termination, we suggest that strong consideration be given by the attorney to immediately end such representation, as it is a rare occasion where the attorney client relationship can be mended in a satisfactory manner. Absent informed consent by the client to permit termination, the rule also provides a couple catch-all provisions. Any of the above actions by the client can give rise to termination. The lawyer may also withdraw if “other good cause for withdrawal exists” or if “withdrawal can be accomplished without material adverse effect on the interests of the client.” See Rules 1.16(b)(1) and (9).
“A client has the right to discharge its lawyer at any time, with or without cause, subject to liability for payment of the lawyer’s services.” Rule 1.16, cmt. 4. If the lawyer is discharged, withdrawal from representation is mandatory under Rule 1.16(a)(3). However, discharge by a client with diminished capacity may require additional actions necessary to protect the individual under the requirements of Rule 1.14.
How to effectuate the withdrawal will depend on the representation. If the matter is not pending in court, the lawyer will need to give reasonable warning to the client that the lawyer will withdraw unless the outstanding bill is paid or the other obligation fulfilled. See Rule 1.16(d).
If the representation is pending in court or before another tribunal, permission to withdraw may be required by the rules of the court. Caution should be exercised with drafting a motion to withdraw to ensure that confidential client information is not revealed and the client suffers no material adverse impact.
Rule 1.16 requires that as part of the termination of representation, the lawyer reasonably protect the client’s interests by giving due notice, allowing reasonable time to employ other counsel, and returning the client file. This applies regardless of whether the client has paid the lawyer. The lawyer cannot charge the client for the file as the client receives no benefit from a lawyer keeping a copy of the file. We recommend that attorneys return the original file to the client and keep a copy digitally.
If there is any part of a fee paid in advance that has not been earned, the lawyer must promptly refund those funds to the client. This applies to an advance payment even though it may be called “nonrefundable” or “earned upon receipt”.
Finally, once the representation is terminated, we strongly recommend that lawyers timely provide their client a copy of any Court Order Permitting Withdrawal. Once terminated, we also recommend that lawyers refrain from engaging in any further communications with the former client about the matter in question – for a myriad of reasons!
If you have any questions about withdrawing from representation, please feel free to call us at OBLIC. We are here to help you avoid adverse situations.
- Include language in fee agreement about client responsibilities to cooperate and pay invoices. See the sample Fee Agreement and sample Contingent Fee Agreement.
- Regularly review files and billing for client compliance with requirements in fee agreement.
- Give reasonable warning to client if noncompliant.
- Follow up with withdrawal from representation, including obtaining permission of tribunal.
- Take steps to reasonably protect interests of client:
- Give due notice
- Allow reasonable time to employ other counsel
- Deliver client file, all paper and property to client entitled to receive.
- Comply with all applicable laws and rules.