What is the definition of attorney abandoning client?
I am working on filing a complaint with the CA State Bar about my attorney. One question asks if the complaint involves allegations that the attorney has abandoned the client. I have searched the CA State Bar website, Google, etc. I can’t find what constitutes being “abandoned” by an attorney. It has been 6 months since I have heard from my attorney. After multiple attempts to communicate via email, phone and a certified letter she has not responded to me. Her Law Firm responded to my last certified letter by stating she has a new email address and phone number (and cc’d my attorney on that reply email). Their website says she is still a partner there but the site has her new contact information. If she is no longer practicing at that Law Firm, isn’t it both my lawyer’s and the Law Firm’s ethical obligation to let me know of this change and give me her new contact information PRIOR to me having to send a certified letter to track her down? There are many other issues. But before I mark “yes” on this question, I want to confirm this would constitute being “abandoned” by my attorney. Thank you in advance.
What Happens to An Attorney Who Abandons His Client’s Legal Matter?
In California, a lawyer’s abandonment of a client violates the Rules of Professional Conduct. This includes failing to communicate with the client or taking steps to avoid prejudice.
- A lawyer can withdraw with a client’s consent, even at a critical time.
- A lawyer can withdraw if the client’s interest won’t be prejudiced or delayed.
- A lawyer can withdraw if they know or should know the client is acting without probable cause.
- A lawyer can withdraw if they know or should know the representation will violate the rules or the State Bar Act.
- A lawyer should give the client enough notice to retain other counsel.
- A lawyer should cooperate with the existing firm to ensure the client’s interests are protected.
- A lawyer should protect client confidences.
- A lawyer should address conflicts of interest with clients.
- Withdrawing at a critical point and prejudicing the client’s case
- Waiting too long to terminate the relationship
Ethical considerations in withdrawing from representation
Knowing how much – rather, how little – you can say when you seek Court approval to withdraw
Every lawyer in private practice has been there at least once in her career – the moment at which she realizes she needs to withdraw from representation of a client. While your client can always fire you at any time for any reason1, (see Fracasse v. Brent (1972) 6 Cal.3d 784, 790) you as the lawyer do not have the same latitude in ending the client relationship. But when you know you need to end the relationship, it is best to do so promptly. While a rash or precipitous decision is never in your best interest, a considered, prompt decision surely is because a deteriorating relationship with your client is unlikely to improve and the passage of time may only make your withdrawal more problematic, especially if you’re headed to trial.
In any case, when you find yourself at a crossroads in a client relationship remember that there are circumstances in which you must terminate the relationship and circumstances where you may terminate the relationship. I will review the California Rules of Professional Conduct for those separate circumstances and then consider what you need to do if your client consents to your withdrawal and – more problematically – what you need to do if you have to go to court to withdraw. The latter situation poses a number of ethical questions as to what you can and cannot tell the court (even in camera) about your situation and why you are seeking to withdraw.
Before discussing cases of mandatory and voluntary withdrawal it is important to remember that whenever you withdraw from representation, you may not withdraw until you have taken “reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, such as giving the client sufficient notice to permit the client to retain other counsel.” (Rules of Professional Conduct 1.16 (d). See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915 [“A lawyer violates his or her ethical mandate by abandoning a client (citation omitted), or by withdrawing at a critical point and thereby prejudicing the client’s case.” (citing rule 3-700(A)(2)]; Moore v. United States, 2008 WL 1901322 at *3 [“[I]n California, withdrawal is proper when the client’s interest will not be unduly prejudiced or delayed”].) This obligation is another reason to act promptly if you believe you need to terminate a client relationship; waiting too long may prejudice your client and forestall or preclude your withdrawal.
When you must terminate legal representation
The Rules of Professional Conduct of the State Bar of California (“Rules of Conduct”) specify three circumstances under which an attorney must terminate a client relationship: (1) where the attorney knows or reasonably should know that a client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; (2) where continued employment would result in violation of the Rules of Professional Conduct or the State Bar Act; or (3) where the attorney’s mental or physical condition renders effective representation “unreasonably difficult.” (Rules Prof. Conduct, rule 1.16 (Declining or Terminating Representation).) You also must seek to withdraw from an action where the client has discharged you. (See, e.g., Bus. & Prof. Code § 6104 [lawyer cannot appear as attorney for a party to an action “without authority”].) Indeed, appearing without authority for a party can be grounds for disbarment or suspension. (Ibid.)
When you may terminate a client relationship
The Rules of Conduct specify that an attorney may terminate a client relationship where the client (a) insists upon presenting a claim or defense not warranted under existing law and not supported by a good faith argument for extension, modification, or reversal of existing law; (b) seeks to pursue an illegal course of conduct; (c) insists that counsel pursue an illegal course of conduct or that violates an attorney’s ethical obligations; (d) engages in conduct that renders it unreasonably difficult for the member to effectively represent the client; (e) insists, in a matter not pending before a tribunal, that the attorney engage in conduct contrary to the judgment and advice of the attorney; or (f) fails to pay the attorney’s agreed-upon fees and expenses. (Rules Prof. Conduct, rule 1.16(b).)
Withdrawal also may be permitted where: continued employment is likely (contrasted to the certainty under 3-700(B)(2)) to violate the attorney’s ethical obligations, the client’s best interests would be served by withdrawal due to an attorney’s inability to work with co-counsel, the attorney’s mental or physical condition renders it difficult for the employment to be carried out effectively, the client knowingly and freely assents to termination, or the member has a good faith belief that the tribunal will find other good cause for withdrawal. (Rules Prof. Conduct, rule 3-700(C)(2)-(6).)
Common grounds for terminating a client relationship are a personality clash, inability to work together or an irreconcilable difference about the course of litigation. In short, a complete breakdown of any sort of workable relationship between you and your client. Courts recognize this sort of breakdown within an attorney-client working relationship as grounds for withdrawing. (Estate of Falco v. Decker (1987) 188 Cal.App.3d 1004, 1014 [motion to withdraw granted “on the basis that the relationship between (the attorney and client) had completely broken down”].) As the Court noted in Estate of Falco, “[i]t was not relevant who caused the breakdown,” but rather that “the effects the rift would have on [the] legal representation.” (Id. at 1015.)
“The guy just disappeared…”
Another recognized ground for withdrawal is when your client simply disappears on you and will not respond to letters or calls or emails. (See, e.g., California State Bar Formal Opinion No. 1989-111.) The facts behind that Opinion are a good example of what it’s like when your client goes AWOL. There, the attorney represented a defendant in a personal injury case and when time came to prepare and file an answer, the client just disappeared.
The attorney wrote three letters to the client to his last known address but the letters were returned unclaimed. The attorney tried calling the client numerous times without success. The Opinion of course did not “rule” on the withdrawal but only advised that an attorney must make a “diligent effort” to locate a client and opined that the attorney could file an answer “to avoid reasonably foreseeable prejudice to the client.” (If your client has disappeared on you or returns your mail unopened, be sure to keep a precise record of all returned correspondence, voice messages, emails, texts and any other means you have tried to communicate with them as you will need to preserve a record of your attempts when you make a motion to withdraw, as discussed more fully below.)
Consensual withdrawal
Where your client consents to your withdrawal, have them sign a Substitution of Attorney (in California it’s Judicial Council Form MC-050). File and serve the signed Substitution on all parties to the action and you are out of the case. Once you’ve filed and served your Substitution you may want to monitor the Court’s online profile of your case and communicate with the Clerk’s office if you have not been removed as counsel from the case in the Court’s online profile. I have had instances where I have been served a year after I withdrew from a case because the Court had not removed me from the service list even though my Substitution had been duly filed and served on all parties.
Moving to withdraw
While I have been able to obtain Substitutions in most cases where I have withdrawn, I have also had clients who, without refusing to sign a substitution, just disappear and ignore my attempts to reach them by phone or mail or email or text. Such unresponsiveness may of course be the reason you feel constrained to withdraw – you can’t prepare for trial if your client does not cooperate and just ignores you. The unresponsiveness may be a pattern of behavior and may be an instance of a client getting cold feet midway through a litigation. In any event, this is one of those cases where you need to act promptly and go to court for the judge’s approval of your withdrawal. In my experience, it is always best to cut ties with an unresponsive client sooner rather than later as the complications down the road may be troublesome and the client’s own detachment from a case can pull her lawyer down with her.
Before getting into the nuts and bolts of withdrawal motions, one important practice tip here, which I alluded to above, is to record in detail each and every time you tried to reach your client and how (letter, email, call, text, etc.) by date and time and, if you left a voicemail, exactly what you said. It’s rather like a meet and confer process where you want to assemble all your efforts at communicating in case the judge asks you what you did to try to reach your client about withdrawing. Once you start drafting the declaration for your withdrawal motion (discussed below) you will need to have a record of all the times you tried to communicate. Once you have the evidence of your attempts at communicating and getting a signed substitution then you can begin your motion to withdraw. In California your motion must be made on three fillable Judicial Council Forms:
MC-051 Notice of Motion and Motion to be Relieved as Counsel – Civil
MC-052 Declaration in Support of Attorney’s Motion to be Relieved as Counsel – Civil
MC-053 Order Granting Attorney’s Motion to be Relieved as Counsel – Civil
No memorandum of points and authorities (“MPA”) accompanies your motion to withdraw in California, unlike the general requirement of an MPA for civil motions. Your declaration is the critical filing here. In it, you provide the “reasons” for your motion, and this is the most difficult document to craft. In California, you may not divulge any privileged communications in support of your motion and the gambit of what constitutes privileged communications is broad – even to the fact that you have not been paid.
Duty not to divulge privileged communications
When submitting and arguing a motion to be relieved as counsel – even in camera – counsel may not under any circumstances reveal confidential client information in seeking to withdraw. California Rules of Court, rule 3.1362(c) specifies that your declaration in support of motion “must state in general terms and without compromising the confidentiality of the attorney-client relationship” why you are bringing your motion. In California, the scope of what might “compromise” the confidentiality of the attorney-client relationship is broad and reaches even to non-public court proceeding.
In fact, if the court orders an in camera hearing to consider your motion, client confidences still may not be disclosed. (Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 595; Cal. State Bar Form. Opn. 2015-192 [confidential information cannot be revealed in open court or in camera.] See also Mary A. Dannelley, Ethically Speaking: Attorney Disclosure Upon Withdrawal, Orange County Lawyer, November 2015, at 47.) This may even preclude an attorney from disclosing a client’s failure to pay agreed-upon fees as the reason for withdrawal, as such information may be a client “secret,” the disclosure of which would be embarrassing or detrimental to the client. (See Bus. & Prof. Code § 6068, subd. (e); Dixon v. State Bar (1982) 32 Cal.3d 728, 735 [attorney subject to discipline for disclosing confidential client information likely to cause client public embarrassment]; Oregon State Bar Form. Opn. 2011-185 [attorney may not disclose in withdrawal motion that client is not paying attorney’s bills].) However, a court may not deny withdrawal where counsel maintains that he must step down because of a disabling conflict that involves privileged communications. (Aceves, 51 Cal.App.4th at 584.)
In the leading case of Aceves v. Superior Court (1996) 51 Cal.App.4th 584, the court of appeal reversed (on a writ of mandate) the trial court’s denial of a motion to withdraw filed by a public defender. In that case, the public defender advised the trial court on the morning of the scheduled trial that he had an actual conflict with his client, declaring that “the conflict caused a ‘complete, utter and absolute’ breakdown in the attorney-client relationship and precluded him from continuing the representation.” (Id. at p. 588.) The public defender also told the trial court that “he could not reveal the nature of the conflict without divulging client confidences or breaching ethical duties.” (Ibid.)
The trial court denied the motion after the public defender refused to reveal privileged communications to further explain the conflict. The court of appeal then denied the public defender’s first writ of mandate “without prejudice to file a renewed application to be relieved as counsel founded upon a showing of the nature of the conflict, which showing may be made in camera.” (Ibid. (citation omitted).) The public defender subsequently renewed his motion, but still refused to reveal privileged or confidential information. The court again denied the motion. Following the denial of its second motion, the public defender’s office filed a second writ, which the court of appeal this time granted. The court ultimately held, “Whereas here the duty not to reveal confidences prevented counsel from further disclosure and the court accepted the good faith of counsel’s representations, the court should find the conflict sufficiently established and permit withdrawal.” That is, Aceves holds that the Court will take counsel’s word for it that a conflict exists and may not probe further.
“And your reason for withdrawal?”
But any motion to withdraw still has to have a reason. So, given all the limitations, what can you say to support your motion? I recommend a very general statement such as:
In accordance with the Ethics Rules (California Rules of Professional Conduct) my withdrawal is mandatory but I have been unable to obtain a signed Substitution of Attorney.
Because the statement is so general you may also want to describe what steps you took to determine what you could and could not say in providing the “reason” for your motion so your statement does not appear evasive or incomplete. You may wish to add a statement clarifying what steps you took before you drafted your stated “reason” for the motion:
I confirmed the application of the Rules independently and with the State Bar Ethics hotline.
The ethical considerations are so important when you are drafting your supporting declaration for the withdrawal motion. Frankly, there is very little that a lawyer can divulge in support of a motion to withdraw. Even, for example, to tell the judge in chambers that your client is unresponsive would be to disclose confidential information about the client and cast an unfavorable light on your client in the Court’s eyes. A judge or opposing counsel may try to elicit information about your client which you should not share (and are ethically prohibited), such as whether he or she has been paying the bill, whether they have moved away, whether they have essentially disappeared, and the like. The Court may ask in general terms for a description of the conflict. (Manfredi & Levine v. Superior Court (1998) 66 Cal.4th 1128, 1133-1136.)
The service rules
Once you have prepared your declaration and are ready to file and serve your motion, be sure to follow the service rules of California Rules of Court, rule 3.1362(d) which provides:
(d) Service
The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service, electronic service, or mail.
(1) If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that either:
(A) The service address is the current residence or business address of the client; or
(B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved.
(2) If the notice is served on the client by electronic service under Code of Civil Procedure section 1010.6 and rule 2.251, it must be accompanied by a declaration stating that the electronic service address is the client’s current electronic service address.
As used in this rule, “current” means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client’s last known address and was not returned or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies.
The questions regarding mail service are included in the Judicial Council Declaration form (MC-052). Be sure you have answered all questions regarding service very accurately as the efforts made at notice to the client are critical to your motion being granted. I mail the notice, motion, declaration and proposed order to any and all mailing addresses I have for a client and also email to any email addresses I have for the client.
After your motion to withdraw has been granted, you will need to serve the order on your client. The Order will include all upcoming hearings in the case. Under California Rules of Court, rule 3.1362(e) the Court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the Court. If that is the case, serve the Order and file your Proof of Service as quickly as you can because you are not relieved as counsel until those steps are taken. In other words, until you have served the order on your client and filed the POS, you remain the attorney of record, having the same duties to act competently to protect the client from prejudice. (Cal. State Bar Form. Opn. 1994-134.)
Obligations following withdrawal
The primary obligation for an attorney following withdrawal is to take all reasonable steps to avoid any prejudice to the client in the litigation. Thus, at a minimum, the attorney must advise the client of such things as any upcoming dates and deadlines in the client’s matter. I recommend a very detailed letter with the precise dates, time and department for all upcoming hearings, discovery deadlines, and any pleadings deadlines in the case. If you have outstanding subpoenas, you should advise your former client of how she may obtain the records once produced by giving her the name of the deposition officer and the third parties to whom any subpoenas were issued. Until the Substitution of Attorney form has been filed or until the court order granting withdrawal is effective, the attorney remains obligated to act competently to protect the client’s interests.
A former attorney does not need to provide additional services to the client once successor counsel has been employed and the attorney has released the client’s files. You do have a duty to release the client’s files. (Rule 1.16(e)(1).) This rule requires that all client materials and property be released and defines “client materials and property” as “correspondence, pleadings, deposition transcripts, expert’s reports, and other writings, exhibits, and physical evidence, whether intangible, electronic, or other form, and other items reasonably necessary to the client’s representation whether the client has paid for them or not.”
The law is not clear on whether or not certain work product of the attorney is within the documents that need to be turned over to a client following termination. Surely work product that has previously been communicated to the client should be turned over to the client, but whether you need to turn over work product in progress (i.e., not previously communicated to the client) remains an open question. You may charge the client for copying everything (if he or she wants a hard copy) if your fee agreement so provides.
Unreasonable delay in releasing or refusal to turn over the client’s file is grounds for discipline. Additionally, where failure to return the client’s file results in damages to the client, the attorney may incur civil liability for malpractice. The bottom line is that the attorney cannot hold the files to extort a disputed fee or to create a lien that is contrary to public policy. (Academy of Calif. Optometrists v. Superior Court (1975) 51 Cal.App.3d 999, 1006.)
Once notified of termination, the attorney must promptly return to the client any part of any fee paid in advance that has not been earned. (Rule 1.16(e)(2).
Conclusion
Withdrawal from any case is fraught with ethical considerations as to when you may withdraw, what reasons you may provide the Court for your withdrawal, your responsibility to avoid prejudice to the client, and your responsibilities following termination. If you believe you need to withdraw from a case and have questions about the particular ethical issues involved, I recommend you call the State Bar hotline. I also recommend you document each and every step you took to try to work things out with your client or to solicit a consensual substitution from them if you believe you really have to withdraw.
Endnote
1Fracasse v. Brent, 6 Cal.3d 784, 790 (1972)(“a client should have both the power and the right at any time to discharge his attorney with or without cause”). A client’s discharge of an attorney cannot constitute breach of contract under California law because “it is a basic term of the contract, implied by law into it by reason of the special relationship of the contracting parties, that the client may terminate that contract at will. (Id. at 791.)
Ethically Speaking – Terminating the Attorney-Client Relationship
As trained advocates, the thought of withdrawing from representation makes lawyers inherently uneasy. Terminating the attorney/client relationship for anything other than completing the scope of the assignment can be uncomfortable. Lawyers must know when and how to withdraw from representing a client to avoid potential ethical violations in these untenable situations. This article provides an overview of how to ethically terminate representation.
While the scope of this article does not extend to the basis for withdrawal, counsel should carefully review California Rules of Professional Conduct, rule 1.16(a) and (b) to determine when withdrawal is required and when withdrawal is permitted, but not required.
No Absolute Right to Withdraw
Clients have the right to discharge lawyers for any reason. However, attorneys do not have the same absolute right to withdraw from the attorney-client relationship. Cal. Rules of Prof’l Conduct, R.1.16. Even if it is proper (or mandatory) for a lawyer to withdraw from representation, she must either get the client’s consent or the tribunal’s approval for matters pending before a tribunal, and must in all matters follow the requirements set forth in rule 1.16 in order to avoid being subject to discipline. Slavkin v. State Bar, 49 Cal. 3d 894, 903 (1989). In matters not pending before a tribunal, a lawyer may terminate the relationship without client consent or approval of any tribunal, provided rule 1.16’s other requirements are met.
Agreements with a client mandating that the client sign (and allow the lawyer to hold) a substitution of attorney to be filed at the lawyer’s election are improper. Los Angeles Bar Ass’n Form. Opn. 371 (1977). However, it is not per se improper for a lawyer to obtain an advance agreement from the client providing that a lawyer may withdraw after giving the client notice and ensuring the client is not abandoned at a critical point in the matter. Ramirez v. Sturdevant, 21 Cal. App. 4th 904, 915 (1994).
Attorneys who abandon their clients and fail to communicate with the client the effects of the withdrawal without taking reasonable steps to avoid foreseeable prejudice are in violation of the Rules of Professional Conduct. Matter of Brockway, 4 Cal. State Bar Ct. Rptr. 944, 951-52 (Rev. Dep’t. 2006).
Of course, a lawyer may obtain a client’s consent to the lawyer’s withdrawal, which generally can occur even at a critical point in the matter, including the eve of trial, so long as the client “knowingly and freely” agrees. Cal. Rules of Prof’l Conduct, R.1.16(b)(6); Cal. Civ. Proc. Code § 284(1); Hock v. Superior Court, 221 Cal. App. 3d 670, 674 (1990).
A lawyer must not terminate representation until she has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, such as giving sufficient notice to permit the client to retain other counsel. Cal. Rules of Prof’l Conduct, R.1.16(d).
As a practical matter, irrespective of why the need to withdraw has arisen and irrespective of what agreements have been entered into with the client, a lawyer must comply with California Rule of Professional Conduct 1.16. A lawyer must take reasonable steps to avoid foreseeable prejudice to the rights of the client when withdrawing from the case. This requirement may include requesting a continuance of an upcoming hearing or requesting an extension to respond to discovery. Counsel should also provide the client reasonable notice of her intent to withdraw to allow the client time to retain other counsel. It would be prudent of counsel to put such notice in writing to mitigate the risk of a claim that counsel did not provide such notice.
Motion to Be Relieved
For matters pending before a tribunal, in the event that a lawyer is unable to obtain the client’s consent to the lawyer’s withdrawal, the attorney may withdraw with court approval upon noticed motion. Cal. Civ. Proc. Code § 284(2). In state court, the requirements as to form and content for a motion to be relieved are governed by California Rules of Court 3.1362. The motion to be relieved must state why a court order is required and a substitution with client consent could not be obtained. Id. Despite this requirement, the duty of confidentiality applies to motions to be relieved irrespective of whether the motions are based on mandatory or permissive withdrawal. San Diego Bar Ass’n Form. Opn. 1990-2.
While an attorney is prohibited from disclosing confidential information in connection with the motion, the court may require that counsel demonstrate in “good faith” the nature of the conflict giving rise to the motion. Manfredi & Levine v. Superior Ct. (Barles), 66 Cal. App. 4th 1128, 1133-36 (1998). Counsel may request an in-camera hearing to provide the court with details. Id. at 1136. Even in an in-camera hearing, counsel cannot disclose confidential information or communications. Resultingly, the duty of confidentiality may limit an attorney’s ability to disclose the circumstances giving rise to the requested relief, even when ordered by the court to reveal those circumstances. Cal. State Bar Form. Opn. 2015-192.
Many times, a motion to be relieved will be based on the failure of the client to pay his/her attorney’s fees. While no California authority has directly addressed this issue, an Oregon State Bar Opinion has concluded that an attorney cannot disclose that the client has not paid the lawyer’s bills because this would be deemed embarrassing or likely to be detrimental to the client. Or. State Bar Form. Opn. 2011-185. Likewise, a written fee agreement is deemed to be a privileged and confidential communication and thus, should not be included as part of the motion. Bus. & Prof. Code §§ 6149, 6068(e)(1); Evid. Code § 952. Moreover, where the basis for withdrawal is the client’s non-payment or any other material breach of a fee agreement, rule 1.16 requires that the lawyer give the client “a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement of performs the obligation.” Cal. Rules of Prof’l Conduct, R.1.16(b)(5). A careful lawyer will be sure this warning is in writing.
It is important for counsel to thoughtfully consider the effect of the duty of confidentiality prior to filing a motion to be relieved. If counsel believes that the motion will be opposed or if he/she is unable to demonstrate in the supporting declaration good faith for the request, it is prudent for counsel to request an in-camera hearing in the moving papers. Even then, counsel must carefully consider how to meet her burden while also ensuring client confidences are maintained. To ensure that the appropriate safeguards are in place, a lawyer should also consider requesting in the motion itself that the hearing be heard by a judge who is not assigned to the case to avoid the potential of prejudicing the client.
Returning the Client’s File
The order on a motion to be relieved must be served on the client and all parties who have appeared in the case. Cal. Rules of Court 3.1362(e). The court may delay the effective date of the order until a proof of service is properly filed. Id. Counsel should therefore carefully consider the timing of filing a motion to be relieved and ensure adequate time is afforded for notice to the client, preparing/filing the motion, attending the hearing, and serving the order, all while also taking appropriate steps to avoid foreseeable prejudice to the client’s case.
Notably, if a motion to be relieved is denied, the lawyer has a duty to comply with the order even if the motion is denied on the basis of conflict of interest. Cal. Rules of Prof’l Conduct, R.1.16, Cmt. 4.
Upon termination of representation, a lawyer should revisit rule 1.16 to ensure that he/she promptly returns any unused funds to the client and releases to the client all client materials and property. Cal. Rules of Prof’l Conduct, R.1.16(e); Jeremy Suiter, Ethically Speaking: Retaining the Client File After the Representation Ends, Orange County Lawyer, April 2014, at 44. When reviewing the final billing statement, counsel should carefully consider whether it is appropriate to charge a client for the preparation and argument of the motion to be relieved as one out of state opinion provides that an attorney may not charge the client for such work. N.C. State Bar Form. Ethics Opn. 2007-8.
All good things must come to an end. When faced with the need to withdraw from representation, a lawyer should proceed thoughtfully throughout the process and remember irrespective of the reason for withdrawal, rule 1.16 and Cal. Rules Ct. 3.1362, as applicable, must be complied with. source
Ethical Departures: Obligations to Clients When Attorneys Change Firms
Years ago, attorney mobility referred to an attorney’s rise in the firm’s ranks from law clerk to associate, to junior partner, to equity partner. Today attorney mobility refers to the ritual of attorneys changing firms on a regular basis to improve one’s financial and equity status. When lawyers in today’s legal market decide to leave their current firms, this decision involves several ethical and professional considerations but the primary focus must always be on the client’s best interest. Little formal guidance exists as to the proper way to handle this relatively common occurrence or how to resolve the competing interests of the departing attorney and the firm in a way that maximizes the client’s best interests.
How and When to Inform the Client
The law treats a lawyer departing his or her firm as a termination of the attorney client relationship and requires the departing attorney to “take reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client.” (See California Rules of Professional Conduct [“CRPC”] 3-700.) The duty to communicate with clients includes the duty to advise clients of changes in employment status that materially alter the client representation. Clients should not be “kept in the dark” about the status of the firm and its attorneys. CRPC 3-500. Procedures should be in place to ensure all clients continue to receive competent representation when an attorney is changing firms.
A departing attorney has an ethical obligation along with the existing firm to assure that clients are informed that the lawyer is leaving the firm. The best practice is for the departing attorney and the responsible person from the existing firm to draft a joint letter that notifies the client of the attorney’s upcoming departure. As the client has the ultimate decision to select counsel of his/her choice, information concerning the lawyer’s departure and where the lawyer is going should be relayed to the client to allow the client adequate time to make an informed decision.
Oftentimes, the departing attorney wants to take the client with him to the new firm. Contacting firm clients with whom the departing attorney has no prior involvement in the client matter may be a potential violation of CRPC 1‑400 (B)(2)(b). Notifying clients of the departing attorney’s new law firm before the attorney actually resigns from his existing firm should adhere to the following:
- Limit the notice to client the departing attorney has represented;
- Do not urge the client to sever his/her relationship with the existing firm but may advise the client of the departing attorney’s willingness and ability to continue representation;
- Advise the client he/she has the right to choose whether the old firm, the departing attorney or some other attorney will continue the representation until conclusion; and
- Do not disparage the former firm.
Partners leaving a law firm are permitted to solicit any client with whom they have a prior professional relationship. [CRPC 1-400(C)]. And, in those instances where the attorney never worked on a client’s matter, solicitation of that client is typically prohibited. Keep in mind that departing attorneys may expose themselves to potential tort liability when they persuade firm clients to leave the firm and change to the departing attorney’s new firm. See Reeves v. Hanlon (2004) 33 Cal.App.4th 1140 regarding intentional interference with contractual relation and interference with prospective economic advantage. See also Davis v. Nadrich (2009) 174 Cal.App.4th 1 regarding negligent interference with prospective economic advantage.
What Goes With the Departing Attorney
As with medical or academic records, the client files are the property of the client. When sending the suggested joint letter, the letter should advise the client that the client may have all of his files and property delivered to the client or to whomever the client wishes to further handle his/her matter. Reeves v. Hanlon (2004) 33 Cal.App.4th 1140. In those circumstances where a departing attorney wants to take client’s files from his/her existing firm, the departing attorney should consider whether those documents were created for the attorney’s general use or were they created specifically for the client’s representation. And, in those circumstances where a departing attorney will no longer be involved in the client’s representation, the departing attorney may still retain copies of the client’s documents provided he/she maintains the confidential information is protected.
Obligations of the New Firm
The departing attorney will need to do a full conflict check as to those clients that are following the departing attorney. Information necessary to complete a conflict check may be disclosed to the new firm as failure to do a detailed check can lead to disaster. The conflict check should include not only those clients likely to come with the newly arriving attorney but also persons adverse to the newly arriving attorney’s clients.
Conclusion
In today’s age of mobility, an ounce of prevention is worth a pound of cure as a departing attorney wants to avoid future litigation with his/her former firm. Be honest and maintain your ethical and fiduciary duties to your clients and your partners. source
– Withdrawing as Counsel Without Inviting Exposure
by Lauren J. Blaes and Michael D. Stewart
The issues that lead a lawyer to withdraw from a matter are often the same issues that can lead to litigation or other disputes with the client. An improper withdrawal can simply accelerate and exacerbate the risk of things going sideways with the client. As discussed below, the key elements of a proper withdrawal from litigation are: having an appropriate basis under the ethical rules; complying with any relevant court rules; and avoiding prejudice to the client (e.g., by not revealing confidential/unsavory facts about the client and timing the withdrawal so that the client is not left in a lurch). It is this last factor that is often the most important risk management step because a prejudiced client can result in a client with a claim. In fact, because many withdrawals are precipitated by a client’s failure to pay fees, a poorly handled withdrawal can provide the soon-to-be-former client with a potential defense or offset to payment of those very fees, if not worse.
Rule 1.16 of the California Rules of Professional Conduct sets forth the various circumstances when a lawyer is required to withdraw, as well as the circumstances where a lawyer is permitted to withdraw. For example, lawyers are required to withdraw when their client demands that they assert a frivolous claim or when the representation will otherwise violate the Rules of Professional Conduct. See Cal. Rules of Prof’l Conduct R. 1.16(a)(1) and 3.1. An even more clear-cut case requiring withdrawal is when the client has terminated the representation. See Cal. Rules of Prof’l Conduct R. 1.16(a)(4); see also Cal. Bus. & Prof. Code § 6104 (“Corruptly or willfully and without authority appearing as attorney for a party to an action or proceeding constitutes a cause for disbarment or suspension.”).
More common are situations when withdrawal is at the lawyer’s discretion. For example, a lawyer may withdraw if “the client breaches a material term of an agreement” (e.g., fails to pay the lawyer’s invoices), but only if the client has been given “reasonable warning” that the lawyer will withdraw unless the obligation is fulfilled. See Cal. Rules of Prof’l Conduct R. 1.16(b)(5); but see California Central District Rule 83-2.3.2 (“Failure of the client to pay agreed compensation is not necessarily sufficient to establish good cause.”). Other situations permitting withdrawal include, for example: (1) where the client insists on action that the lawyer believes is criminal or fraudulent, (2) certain instances where the lawyer has an inability to work with co-counsel, (3) the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively, or (4) more generally, where the lawyer believes in good faith that the court or other tribunal will find other good cause for withdrawal. See Cal. Rules of Prof’l Conduct R. 1.16(b)(1)-(10).
A lawyer whose representation of the client is not before a tribunal still needs to satisfy the mandatory or permissive grounds for withdrawal, but unlike the litigator, does not need to obtain permission from a tribunal. See Cal. Rules of Prof’l Conduct R. 1.16(c). In some circumstances, the court may refuse to allow withdrawal even though the lawyer is facing a seemingly “mandatory” withdrawal situation. For example, if the court denies a lawyer permission to withdraw, the lawyer is obligated to comply with that order “even if the lawyer sought permission to withdraw because of a conflict of interest.” See Cal. Rules of Prof’l Conduct R. 1.16, cmt. 4. In addition, the specific rules and requirements surrounding withdrawal vary from court to court, and some requirements are not obvious. The U.S. District Court, Central District of California, for example, specifically requires counsel to inform organizational clients of the client’s inability to appear pro se. See U.S.D.C. (Cal. C.D.) L.R. 83-2.3.4. In state court, some California lawyers fail to remember that their motion to withdraw must be filed using the Judicial Council forms required by California Rules of Court, Rule 3.1362. The filing must include the motion (with the noticed hearing date), a declaration attesting to the reasons for the withdrawal as well as to service of the motion on the client and all upcoming hearing dates, and a proposed order, all of which are Judicial Council forms. Notably, the motion and accompanying documents must be served not only on all parties, but also on the client, and the declaration supporting the motion must provide facts attesting to efforts to confirm the address of the client.
Though this may seem like a straightforward process, a predicament arises given that lawyers have a duty of confidentiality to their clients. Thus, a careful balancing act ensues between providing the court with sufficient information to justify the withdrawal while still maintaining client confidences. Importantly, even when lawyers are seeking to withdraw they are still bound by the duty of confidentiality. See Cal. Rules of Prof’l Conduct R. 1.6; Cal. Bus. & Prof. Code § 6068(e). Because the broad duty of confidentiality continues even through the motion to withdraw process, lawyers must tread lightly with the information disclosed in their motion and limit what is ultimately shared. Indeed, there are multiple published decisions where lawyers have found themselves in hot water for not sufficiently maintaining such client confidences in the withdrawal process and oversharing.
As an example, a motion to be relieved may state that the specific facts giving rise to the motion are confidential and that, without waiving such client confidences, irreconcilable differences have arisen resulting in a breakdown of the attorney-client relationship. See Page v. Stanley, No. 2:11–cv–02255–CAS(SSx), 2014 WL 2472248 (C.D. Cal. June 2, 2014) (finding withdrawal appropriate where counsel asserted “a breakdown in attorney-client communications” and that it had become “unreasonably difficult” to continue to represent the client); Manfredi & Levine v. Superior Court, 66 Cal. App. 4th 1128, 1135 (1998) (a conflict of interest is present when “there has been an irreparable breakdown of the working relationship between counsel and client”). In fact, the ABA Model Rules suggest that the motion need only cite the relevant rule justifying the attorney’s withdrawal and state that professional considerations require withdrawal. See ABA Model Rules of Prof’l Conduct R. 1.16, cmt. 3 (“The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.”).
As reflected in California State Bar Formal Opinion 1993-133:
[c]lient secrets means any information obtained by the lawyer during the professional relationship, or relating to the representation, which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client. (See Cal. State Bar Formal Opn. Nos. 1980-52 and 1981-58.) Hence, the attorney’s duty to maintain client confidences and secrets inviolate is broader in scope than the attorney-client privilege.
Looking more broadly at other jurisdictions, there are many published decisions finding fault with the lawyer who said too much in their motion to withdraw. See, e.g., People v. Waters, 438 P.3d 753, 761 (Colo. 2019) (disciplining lawyer who disclosed client confidences out of frustration); In re Ponds, 876 A.2d 636, 637 (D.C. 2005) (censuring lawyer for disclosing confidential information in a motion to withdraw); In re Gonzalez, 773 A.2d 1026, 1029-32 (D.C. 2001) (admonishing lawyer who revealed that his clients had stopped paying, failed to cooperate in preparing for trial, missed several appointments, and had misrepresented facts); Attorney Grievance Comm’n of Md. v. Smith-Scott, 230 A.3d 30, 69 (Md. 2020) (concluding that lawyer violated her duty of confidentiality when she attached email exchanges with the client to support withdrawal); Cleveland Metro. Bar Ass’n v. Heben, 81 N.E.3d 469, 471-72 (Ohio 2017) (disciplining a lawyer who revealed attorney-client communications about the scope of the representation, accused the client of failing to pay his fees, and disclosed legal advice he had provided about the client’s potentially illegal conduct); Lawyer Disciplinary Bd. v. Farber, 488 S.E.2d 460, 466 (W. Va. 1997) (suspending a lawyer who attached an affidavit to a motion to withdraw that accused the client of improper conduct).
If the lawyer suspects that the court may require further information based on past experience with the particular judge or the procedural posture of the case (e.g., there have already been numerous changes to counsel, the case is close to trial or a significant motion, etc.), the attorney may also use the motion to request that, if necessary, any further information requested by the court be provided in an in camera hearing outside the presence of all other parties. See Manfredi, 66 Cal. App. 4th at 1136-37. In fact, as a matter of course, it may be best to preemptively address this potential issue by putting the request for an in camera hearing in the motion so that the court is prepared for such a request. In some cases, the court may then reserve the withdrawal hearing for the last matter on the docket.
Final Remarks
As discussed above, there are many valid reasons why a lawyer may seek to withdraw from a case. However, at the end of the day, if an attorney-client relationship goes sour or a situation otherwise arises requiring or permitting withdrawal, we have a duty to take measures to prevent prejudice to the client, including by protecting confidential client information, both in the filed motion and at the hearing. Lawyers should err on the side of caution as to what is shared with the court and say only as much as is necessary to substantiate the withdrawal—which, in many cases, can be as simple as a statement that there are professional considerations requiring withdrawal. Going beyond that may help get you out of the case, but may also give the client a reason to be mad at you, a reason to never pay you, or even a reason to sue you. source
Withdrawing as Counsel: What California Attorneys Owe Their Clients
It is an unfortunate truth in business: sometimes, despite best intentions at the outset of a professional relationship, a client and her service provider will need to part ways. These breakups could be due to incompatible communication styles, disagreements about strategy, fee disputes, or a host of other reasons. In most industries, when such issues arise, either party is free to terminate the relationship, walk away, and move on to more fruitful pursuits.
Not always so in the legal profession. Attorneys have an ethical duty to act in the best interests of – and minimize harm to – their clients, and this obligation continues even where the attorney client relationship has fundamentally broken down or the client is not paying the lawyer for his services. And where a client is involved in an ongoing lawsuit and does not expressly consent to her attorney’s withdrawal, the attorney must obtain a judge’s consent before ending the representation. See Cal. Code Civ. Procedure § 284.
On what grounds may an attorney withdraw from representing a client in active litigation, without a client’s consent? California Rules of Professional Conduct, Rule 3-700 lists the specific grounds, including, for example: where the client seeks to pursue an illegal course of conduct, where the client breaches an agreement to pay attorney fees, or where the lawyer’s mental or physical condition renders effective representation unreasonably difficult. To prove to the court that one of these grounds exist, lawyers may be inclined to take a “kitchen sink” approach to withdrawal motions. For example, an attorney may wish to attach to his withdrawal motion some attorney-client emails to demonstrate a breakdown in communication; or a list of outstanding invoices to show nonpayment issues; or a declaration explaining, in his own words, certain client demands that the attorney believes are unreasonable.
This would be a grave mistake and would violate California attorney ethics requirements. Rule 3-700 warns that an attorney “shall not withdraw from employment until [he/she] has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client [and] allowing time for employment of new counsel…”. Further, an attorney must at all times maintain lawyer client confidentiality to protect a client’s confidential information , as required under Rule 3-100(A) and California Business and Professions Code §6068(e). As discussed by the California State Bar’s Standing Committee on Professional Responsibility and Conduct, the duty of attorney-client confidentiality “may prevent or limit an attorney from testifying in detail even about the circumstances of a confidential communication where doing so would disclose client ‘confidences’ or ‘secrets.’” Formal Opinion No. 2015-192 (emphasis added).
As such, a withdrawing attorney faces a difficult dilemma: he must disclose enough information to convince a court of the need to withdraw, without sharing any information that is confidential or may prejudice the client. Recognizing this sticky situation, California’s professional ethics Standing Committee has opined that “ordinarily it will be sufficient [for an attorney] to say only words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney-client relationship.” Formal Opinion No. 2015-192. See also Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 591 (holding “[w]here as here the duty not to reveal confidences prevented counsel from further disclosure and the court accepted the good faith of counsel’s representations, the court should find the conflict sufficiently established and permit withdrawal.”) These rules have a counterpart in the American Bar Association’s Model Rules, Rule 1.16, which states that “[t]he lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.”
Could an attorney provide more detail to the court while also satisfying his ethical obligations by submitting confidential client information directly to the judge’s private chambers (“in camera”), so that the opposing side and the public cannot see it? The answer is still no: attorneys are prohibited from revealing attorney client privileged communication, even during an “in camera” hearing. See Formal Opinion at p. 6. This remains the case even where a court orders an “in camera” filing, and under those circumstances the ethics Standing Committee advises that an attorney request that his withdrawal motion be transferred to another judge, in order to prevent prejudice to the client that may otherwise arise if the trial judge (e.g. the one to decide/ preside over the merits of the case) were to assess the privileged information. Id. at pp. 9-10.
If an attorney’s withdrawal motion is ultimately denied, the attorney must avail himself of other avenues, such as appeal or other further review of a court’s order. See Formal Opinion No. 2015-192. Once these alternative avenues have been exhausted, the attorney must “evaluate for herself the relevant legal authorities and the particular circumstances…and reach her own conclusion on how to proceed,” while at all times keeping in time the impact of her choice on the client. Id.
Simply put, duties of a lawyer to his client must be forefront in his mind during any attempt to terminate a client relationship, regardless of how justified a withdrawal may be. Striking an ethical balance between competing obligations and goals may be difficult for the attorney, but is required under California law to ensure client protection at all stages of a representation.
Attorney v. Client – Walking the Ethics Tightrope
As a legal ethics and risk management advisor, I am often asked whether litigation between an attorney and client is permitted during engagement on another matter. This situation often arises as to legal fee disputes; however, lawsuits between in-house or staff counsel and their employer/client is another concern.
No California law or ethics rule expressly prohibits attorneys from suing clients while continuing to represent them. The Los Angeles County Bar Ethics Committee (“Committee”) has issued advisory opinions (1) regarding fee disputes between a lawyer and current client and the courts have addressed the pertinent California Rules of Professional Conduct (“CRPC”).
The California Supreme Court has held that Rule 3-310(B)(4), “addresses not the existence of general antagonism between lawyer and client, but tangible conflicts between the lawyer’s and client’s interest in the subject matter of the representation.”(2) The committee then opined, while a fee dispute, alone, falls within the rubric of a “general antagonism,” it does not create a per se conflict under Rule 3-310(C).(3)
Rule 3-300 does not apply to a legal services agreement unless it “confers on the member an ownership, possessory, security or other pecuniary interest adverse to the client.” The California Supreme Court has confirmed that a charging lien in a retainer agreement is an adverse pecuniary interest under Rule 3-300.(4) Thus, the committee urged the “line should be drawn” when the dispute changes from a unsecured demand into an action that can be reduced to a judgment or lien, constituting an adverse pecuniary interest.(5) One should ensure the engagement is over before suing a former client for fees.
Even if only “general antagonism” exists, an attorney must not “fail to perform legal services with competence.”(6) If a fee dispute reaches a point where a client’s interests can no longer be adequately represented, withdrawal should be pursued.(7) It is important to consider the applicable statutes of limitation. Filing a fee claim within one-year after representation ends could invite a malpractice claim.(8)
The courts have not specifically addressed whether in-house or staff attorneys may sue their current employer-client; however, the California Supreme Court has fashioned a limited right for such attorneys to sue their former employers for wrongful termination.(9)
The court recognized the common law rule allowing a client to terminate the attorney at any time for any reason is predicated on the relationship of an independent lawyer with a multiple client base,10 not in-house counsel with a single client. Guidance is gleaned from our high court’s rulings: (1) the in-house attorney’s complex, dual responsibilities to employer and client prevent retaliation for participation in an action against the employer/client, but rearranging assignments might ensure confidence in the continuing representation; and, (2) should an in-house attorney be discharged, a wrongful termination claim may be sought under certain circumstances.
Protecting Your Rights Against All Types Of Ethics Violations
Legal ethics refers to an ethical code that governs lawyers and their staff. These ethical rules are dictated by the State of California’s Rules of Professional Conduct.
California Breach Of Legal Ethics Lawyers
When you suspect your lawyer is in violation of California’s code of legal ethics, you may notify the California State Bar, which might decide to investigate and punish the attorney. Sometimes, further action is required if the lawyer in question has caused damages. That is where an experienced legal ethics law firm in Orange County can step in and help you recover the damages caused by poor legal counsel.
Questionable legal ethics can arise in many forms, including the following:
- Client Neglect – not returning phone calls, or answering correspondence
- Conflicts of Interest – a lawyer may not be representing a client to the best of their ability due to allegiance to another client, or the opposition
- Fraudulent Activity – forged documents, doctored evidence, or dishonorable witnesses
- Lawyer Fees – improper billing for services rendered
- Misappropriation of client funds
Legal Malpractice Lawyers In Orange County
Legal malpractice refers to a situation where a lawyer failed to provide appropriate legal representation (e.g., the lawyer’s work fell below the standard of care). This does not simply mean the lawyer lost your case, since many other factors determine the outcome of a legal matter. For a legal malpractice case to be successful, you must typically prove the following:
- Your lawyer provided inaccurate, or unnecessary legal counsel, or performed inappropriate actions that did not meet the community standard.
- The lawyer’s negligent behavior harmed you. In other words, the lawyer must have caused some sort of damage to you that was not there before.
- A competent lawyer would have achieved a better result.
- If your lawyer lost a case where you were the plaintiff, you must prove a competent lawyer would have won the case, and you would have been able to collect the damages you sought in that case.
Legal malpractice comes in many forms. The most common types of legal malpractice include the following:
- Missing court deadlines
- Failing to address and resolve conflicts of interest
- Client abandonment
- Inadequate knowledge of the law or legal proceedings, resulting in a trial loss or terrible terms in a contract you signed
- Overbilling
- Failing to file a lawsuit within the statute of limitations
- Unacceptable communication with a client, including not returning phone calls, or failing to keep clients informed source
In the case of Denise Hemmann, attorney in Jackson, Georgia, things did not go well. She has been sanctioned by the Supreme Court of Georgia four previous times for abandonment, failure to properly withdraw from representation and failure to communicate with certain clients about her withdrawal. All this was reported in the Fulton County Daily Report, Friday, November 1, 2019.
Attorney Hemmann sought to receive public sanctions for her behavior, hoping that would be sufficient punishment. The Supreme Court said that was not enough of a punishment. The Court acknowledged that this being her 5th violation, disbarment was appropriate.
However, they also acknowledged that this would be the harshest of punishments. Instead the Court agreed to suspend Attorney Hemmann from practice for a short period of time (unspecified) “to make it clear to her and other members of the Bar the importance of acting with diligence to ensure that the circumstances that lead to misconduct are addressed before additional misconduct can occur.” Opinion Daily Section of F.C.D.R. November 1, 2019
So what does this mean for the rest of us lawyers? It means that communication with our clients is vital to keeping a good name and keeping our license to practice law.
The most likely way a lawyer gets in trouble with the Bar is when his/her escrow account goes haywire or when a client makes a complaint to the State Bar of foul lawyer conduct.
In the case of Attorney Hemmann, she went afoul with the Rules of Professional Conduct a number of times before the Bar dropped the hammer on her. She seemingly was reprimanded four previous times by the Bar.
If you seek to file a complaint against your lawyer, your complaint will be sent by the Bar to your lawyer so the lawyer may respond. Most of the time, after the lawyer responds and explains, the complaint will be dropped. Why is this so? It is usually because the lawyer gives a decent/adequate reason for his behavior/legal conduct. However, that was clearly not the case with Attorney Hemmann. When the lawyer fails to respond to the State Bar’s request for information that is the red flag for the Bar to pursue the matter further.
No lawyer wants to get a letter from the State Bar with a Notice of Complaint/Rule violation inside. But when that happens, the lawyer needs to respond. There is probably a lot more misconduct out there that doesn’t get reported to the State Bar. Clients fire their lawyers and hire others all the time.
Legal malpractice insurance companies ask lawyers if they have ever sued their clients for fees. This is an amazing act of stupidity on the lawyer’s part. If you and your lawyer cannot get along, agree to disagree and go your separate ways. The lawyer then files a Notice of Withdrawal with the Court system, sends a copy to the client and all other interested parties but should never sue his client for fees. To do so will surely find the client filing a Bar Complaint! Take you loss and move on. Easier said than done but true nevertheless. source