by Nicole Nuzzo

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.

Nicole Nuzzo is a partner with Bremer Whyte Brown & O’Meara, LLP who is designated by the State Bar of California Board of Legal Specialization as a Certified Family Law Specialist. Nicole limits her practice to family law matters. Nicole is a member of the OCBA Professionalism & Ethics Committee and may be reached at nnuzzo@bremerwhyte.com.