Breaking Up Is Hard to Do...

By Lisa F. Geherin posted 04-02-2019 15:36


Especially when it’s with a client. Most of us have had an occasion or two when we’ve either withdrawn from representing a client or just thought long and hard about doing so. If you are in the “thought about” camp, there may have been something holding you back: the notion of loyalty, explains Eric Cooperstein in Wash That Client Right Out of Your Hair.

Cooperstein argues some of the “most important principles of lawyer ethics—confidentiality, avoidance of conflicts, holding funds in trust—are built on the idea of loyalty to the client.” Thus many lawyers believe in the notion that once you agree to represent a client, you do so until the very end. But sticking with a problem client may do more harm than good.

Under what circumstances can you withdrawal? Rule 1.16 of the Michigan Rules of Professional Conduct categorizes termination of representation in two ways:

Mandatory. You must withdraw from the representation of a client if

  1. the representation will result in violation of the Rules of Professional Conduct or other law,
  2. the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client, or
  3. the lawyer is discharged.

Permissive. You may withdraw under the following circumstances:

  1. The client persists in a course of action involving the lawyer’s services that the lawyer believes is criminal or fraudulent.
  2. The client has used the lawyer’s services to commit a crime or fraud.
  3. The client insists on pursuing an objective that the lawyer considers repugnant or imprudent.
  4. The client fails to fulfill an obligation to the lawyer and has been warned by the lawyer of withdraw if the obligation is not fulfilled.
  5. The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.
  6. Other good cause exists.

Permissive withdrawal may be appropriate if the lawyer can do it without material adverse effect to a client’s interests, so provide a fair amount of notice to a client, allow the client time to obtain other counsel, provide the file or other papers, and possibly refund unearned advanced fees. Finally, any withdrawal requires court permission regardless of whether it is mandatory or permissive.

How can you ensure your motion to withdraw is successful? Here are some tips:

  1. Be mindful of Rule 1.6, Confidentiality of Information. This rule may limit the kinds of details that can be disclosed in a motion to withdraw, as outlined in Lawyers Should Tread Carefully Before Quitting a Troublesome Client. A well-worded motion should allow the judge to read between the lines without requiring disclosure of confidential information.
  2. If you are withdrawing for nonpayment, be sure you have given the client a clear warning, in writing, according to Avoiding Withdrawal Pains.
  3. Make sure you don’t wait unit the 12th hour to make your motion to withdraw. The court will want to see that you have provided your client with ample notice of your intent and that you’re not trying to withdraw the day before trial.
  4. Finally, be sure you properly serve your client with the motion and attach the proof of service.