We often get questions to the OBLIC Hotline about withdrawing from representation. Sometimes withdrawal is necessary because of a conflict of interest. More often, the need to withdraw is the frustrating outcome of undertaking representation of a difficult client.
The Ohio Rules of Professional Conduct govern this process of withdrawing at Prof. Cond. R. 1.16 Declining or Terminating Representation. The rule lists nine situations where if any of the nine apply, the lawyer may withdraw from representation. The first consideration is that the withdrawal can be accomplished without material adverse effect on the interests of the client. This underscores the importance of withdrawing before the representation reaches the absolute breaking point.
A lawyer may withdraw if the client fails to pay. The rule provides that a lawyer may withdraw if the client fails substantially to fulfill an obligation, financial or otherwise, 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 rule also allows a lawyer to withdraw if the representation 1) will result in an unreasonable financial burden on the lawyer or 2) has been rendered unreasonably difficult by the client. The written fee agreement should address the requirement for payment of fees and the consequences if the client fails to pay.
As part of the termination of representation, the lawyer must take steps, to the extent reasonably practicable, to protect the client’s interests. Rule 1.16(d) lists some of those steps:
- giving due notice to the client
- allowing reasonable time for employment of other counsel
- delivering to the client all papers and property to which the client is entitled
- complying with applicable laws and rules.
The file must be provided to the client, whether client has paid for legal services or not. See Ohio Board of Professional Conduct Opinion 2019-6 Ethical Obligation to Deliver a Former Client’s File. Client papers and property shall be promptly delivered to the client. “Client papers and property” may include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client’s representation. For additional guidance on what to return from the client file, see Opinion 2010-2.
The lawyer must promptly refund to the client any part of a fee paid in advance that has not been earned, even if it is termed a “flat fee,” “nonrefundable” or “earned upon receipt.” See Ohio Board of Professional Conduct Opinion 2106-1. Additional information on How do I determine the amount of a refund on a flat fee agreement? is found on the website of the Office of Disciplinary Counsel.
If permission of the tribunal is required, the lawyer must carefully consider how that filing is written, without violating Rule 1.6 Confidentiality of Information. Appropriate references to the rule may be made. However, the motion to withdraw cannot reveal the substance of confidential client-lawyer communications or make statements contrary to the client’s interest. See, Columbus Bar Association v Burgess, 2020-043.
Finally, if a lawyer withdraws from representation, the lawyer should not succumb to pressure from the client to reconsider and re-enter the representation no matter how much the client begs the lawyer to do so. Once out, it is important to stay out!
Decisions to withdraw from representation require careful consideration. We are happy to discuss these situations with policyholders and provide up to one hour complimentary ethics consult to assist. We’re here to help! Please contact us if faced with this decision.
|Gretchen K. Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Co.
Direct: 614 572 0620
|Monica Waller, Esq.
Senior Loss Prevention Counsel
Ohio Bar Liability Insurance Co.
Direct: 614 859 2978