June 2016 | Earn one hour of MCLE Credit in Legal Ethics
By Suzanne Burke Spencer
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The lines between ethically mandated and permissive withdrawal
from a client’s representation are often unclear, making it difficult for
attorneys to determine their ethical obligations and how to satisfy them. This
article will explore where the lines are drawn, how they are applied, and what an
attorney’s duties are when withdrawing from representation.
The close lines between mandatory and permissive
3-700 of the California Rules of Professional Conduct provides
three grounds upon which an attorney must withdraw from representing a client,
and several grounds upon which an attorney may, but is not required to,
withdraw. Each of the three mandatory grounds for withdrawal under the rule has
a similar corresponding permissive ground for withdrawal, often making it
difficult to discern whether withdrawal is required or merely permissive.
Withdrawal is mandatory, for example, where the
attorney “knows or should know the client is ... asserting a position in
litigation ... without probable cause and for the purpose of harassing or
maliciously injuring any person.” Rule 3-700(B)(1) (emphasis added). However, an
attorney may – but is not required to – withdraw if the
client insists on presenting a claim that is not warranted under existing law
or cannot be supported by a good faith argument for an extension, modification,
or reversal of existing law. Rule 3-700(C)(1)(a). Withdrawal for
presenting a claim that lacks probable cause, then, is mandatory only if it is
also brought for the purpose of harassment or malicious injury.
Rule 3-700(B)(2) mandates withdrawal when the
attorney “knows or should know that continued employment will result in
violation of [the Rules of Professional Conduct] or the State Bar Act.”
(Emphasis added). Where continued representation is only likely to result in a
violation of the Rules or State Bar Act, however, withdrawal is permitted, but not mandatory. Rule 3-700(C)(2).
Finally, withdrawal is mandatory where the
attorney’s “mental or physical condition renders it unreasonably difficult to
carry out the employment effectively.” Rule 3-700(B)(3). If the attorney’s
condition renders it only “difficult” to carry out the representation, but not
“unreasonably” so, withdrawal is permitted, but not mandatory. Rule 3-700(C)(4).
There is little authority specifying the differences
between when, for example, continued representation “will result,” as opposed
to “is likely to result,” in a violation of the rules or when incapacity
renders it “unreasonably” difficult, as opposed to just “difficult,” to
continue representation. However, authorities describing various circumstances
in which an attorney must – or may not – withdraw provide guidance to counsel in these situations.
Mandatory withdrawal for a lack of probable
cause or legal merit
A decision to withdraw on the grounds that a client
is asserting a position in litigation, without probable cause and for an
improper purpose under Rule 3-700(B)(1), involves a balancing of the attorney’s
duties to protect her client’s interests and the attorney’s obligation to
“respect the legitimate interests of fellow members of the bar, the judiciary,
and the administration of justice.” Kirsch v. Duryea (1978) 21 Cal.3d
303. This same balancing is required where an attorney seeks to withdraw under
Rule 3-700(B)(2) because continued representation will violate the rules which prohibit
attorneys from presenting any position not warranted under existing law or that
is not “legal or just.” Bus. & Prof. Code § 6068(c); Rule 3-200(B).
However, some cases have held that an attorney’s
conclusion that a client’s case lacks merit does not necessarily give rise to grounds
for mandatory withdrawal, in part because the attorney’s conclusion could be
wrong. In Estate of Falco (1987) 188 Cal.App.3d 1004, for example, the attorneys
asserted they were required to withdraw because they determined the client’s
case was meritless. The clients later recovered on their claims. The court
found that the attorneys’ conclusion the claims were meritless was wrong and
that withdrawal was therefore not ethically mandated. Id. at 1017-18.
Other cases indicate that when an attorney no longer
believes in the merit of a client’s claims because, for example, the attorney
does not believe the client’s version of the facts, withdrawal is mandated
under Rule 3-700(B)(2); however, even in those circumstances, the attorney is
obligated to protect the client’s claims until promptly obtaining a
substitution of attorney or formally withdrawing from the case. The attorney
may not simply inform the client that he no longer wants to represent the
client because he does not believe in her claim and then let the case languish. Matter of Hickey (1990) 50 Cal.3d 571.
Mandatory withdrawal where
‘will violate’ ethical obligations
An attorney’s obligation to withdraw where the
representation “will result” in a violation of the Rules applies to prospective
violations only. Although not interpreted in any California reported cases to
date, a leading treatise interprets the phrase “will result in” a violation of
the rules as meaning it must be “reasonably clear” that the rules will be
violated. Vapnek, et al., California Practice Guide: Professional
Responsibility, 10:29 (The Rutter Group 2015).
A host of different circumstances – from inability
to obtain necessary client consent to client perjury – may mandate withdrawal
under the “will result” standard in Rule 3-700(B)(2).
In Matter of Davis, for example, an attorney who
had a conflict under Rule 3-310 that was not cured by informed consent was
required to withdraw. Matter of Davis (Rev. Dep’t
2003) 4 Cal. State Bar Ct. Rptr. 576 (“[G]iven that there was
an actual conflict, as opposed to a potential conflict, respondent was obliged
to withdraw from his representation of the corporation if he was unsuccessful
in obtaining the informed consent of the board.”) Similarly,
an attorney who is hired by an insurer to represent the insured would be
required to withdraw should the attorney uncover information which would allow
the insurer to deny coverage. COPRAC
Form Opn. 1995-139.
Withdrawal is also required if the client insists the
attorney act unethically. For example, where an attorney makes a material
change to a contract but inadvertently fails to redline the change, the
attorney has an obligation to disclose the error to the opposing party. If the
client insists that the attorney conceal the change, the attorney is required
to withdraw from the representation. COPRAC Form.
Opn. 2013-189; see also L.A. County Bar
Ass’n Form. Opn. No. 520 (failure to disclose overpayment under
a settlement agreement). Client instructions to conceal information that must
be disclosed in an action will also typically obligate the attorney to withdraw
under Rule 3-700(A)(2). See Bar Ass’n of San Francisco, Opinion No. 1977-2
(instruction to conceal community assets).
However, courts have rejected attorneys’ claims that
a client’s mere failure to cooperate mandates withdrawal under 3-700(B). See
Rus, Miliband & Smith v. Conkle & Olesten (2003) 113 Cal.App.4th
Attorneys may also be required to withdraw when
their client commits perjury, although the ability to withdraw without prejudicing
the client in these circumstances must be considered carefully and alternatives
to correct the perjury should be pursued before seeking to withdraw. COPRAC Form.
Where a client intends to commit perjury, but has
not already done so, an attorney’s duties will turn on a number of factors,
including whether the lawyer actually knows, as opposed to merely suspects,
that false testimony will be provided. Some authority supports the conclusion
that actual knowledge of the client’s intent to commit perjury is required
before an attorney has any ethical duty to attempt to prevent or limit the use
of potentially false testimony. See Orange County Bar Ass’n, Form.
Opn. 2003-01 (collecting cases). In a criminal
matter, even with actual knowledge that the defendant-client intends to commit
perjury, the defendant’s constitutional right to testify on his own behalf, Rock
v. Arkansas, (1987) 483 U.S. 44, generally means the best
balance between the attorney’s competing ethical duties may not be to withdraw,
but rather to permit the client to testify in the narrative. People v.
Bolton (2008) 166 Cal.App.4th 343, 357.
Mandatory withdrawal on the basis of attorney
An attorney’s mental or physical condition may
require withdrawal if the lawyer finds the condition renders it unreasonably
difficult to carry out the employment. Even under such circumstances, however,
the attorney is required to take the formal steps necessary to withdraw from
representation – either through substitution of attorney or motion to be relieved
as counsel. Failure to do so may subject the attorney to discipline. See Nehad
v. Mukasey, 535 F.3d 962, 970 (9th Cir. 2008) (attorney clearly violated
the California Rules where the attorney informed the client that he had to
withdraw from the representation because of a “personal issue” (spouse’s
illness) the day before a significant hearing and that the client had to settle
that day or lose the benefit of attorney’s services).
In Slavkin v. State Bar (1989) 49 Cal.3d 894,
withdrawal was mandated because alcohol and drug abuse caused the attorney
to miss deadlines and fail to attend to client matters. The attorney had taken
no steps to seek to be substituted out or to be relieved as counsel. However, because
the Supreme Court found it inconsistent to be charged both with violating the
mandatory duty to withdraw for incapacity and with de facto withdrawal without
taking the reasonable steps necessary to avoid prejudice to her clients, it
upheld the attorney’s conviction only on the latter charge. Id. at 903.
Circumstances under which attorneys may not
An attorney may generally not withdraw on permissive
or mandatory grounds because a client refuses to settle, even if that refusal
is against the advice of counsel. Estate of Falco, 188 Cal.App.3d at
1019; but see Pearlmutter v. Alexander (1979)
97 Cal.App.3d Supp. 16, 20 (withdrawal
permitted where the client’s refusal to consummate an
agreed-upon settlement rendered it unreasonably difficult for the attorney to
carry out his employment effectively). Nor may an attorney attempt to create by
contract a right to withdraw for failure to settle by “structuring
the representation agreement so as to allow the lawyer to withdraw, or to ratchet
up the cost of representation, if the client refuses an offer of settlement.” Nehad,
535 F.3d at 970-71.
Attorneys are also prohibited from withdrawing from
representation on the basis of a client’s race,
national origin, sex, sexual orientation, religion, age or disability. Rule
Even when withdrawal is required, attorneys
must protect client confidentiality and the client’s best interests
Regardless of the grounds on which he or she does
so, the withdrawing attorney must take the reasonable steps necessary to avoid
foreseeable prejudice to the client. Rule
3-700(A)(2). This duty continues up to the time the
attorney is either formally substituted out of the case or a motion to be
relieved as counsel is granted. Matter of Riley (1994) 3 Cal. State Bar Ct. Rptr. 91, 115-16; COPRAC Form.
The reasonable steps required by 3-700(A)(2) include, but are not limited to, giving notice to the
client and allowing time for employment of other counsel. Rule
An attorney who fails to withdraw when withdrawal is
mandatory, or who stops performing services for any reason without formally
withdrawing and avoiding foreseeable prejudice to a client, may be disciplined. See Bar Ass’n of San Francisco, Opinion No.
1977-2 (where withdrawal is mandatory, failure to do so
“is proper subject for disciplinary proceedings”); Matter of Davis (Rev.
Dep’t 2003) 4 Cal. State Bar Ct. Rptr. 576; Matter of Miller (Rev. Dep’t 1990) 1 Cal. State Bar Ct. Rptr 131, 135 (improper
de facto withdrawal).
Where a motion to be relieved as counsel is
necessary, an attorney may not disclose confidential information in support of
the motion. Rule 3-100; Bus. & Prof. Code § 6068(e). Even if the court orders
the attorney to reveal privileged or confidential information to support the
application to be relieved as counsel, the attorney is ethically obliged to
resist such an order, at least at first, through lawful means, such as seeking
appellate review. COPRAC Form.
When determining whether withdrawal is mandatory
under the rules, attorneys must carefully weigh the best interests of the
client and sometimes make difficult choices. Where withdrawal is required,
however, attorneys must take reasonable steps to avoid prejudice to the client
and to preserve the client’s claims, even if the attorney has concluded that
the claims lack merit.
Suzanne Burke Spencer is the managing shareholder
of Sall Spencer Callas & Krueger in Laguna Beach, where she focuses her
practice on business litigation, legal malpractice and professional ethics. She
is also the vice-chair of the State Bar of California’s Committee on
Professional Responsibility and Conduct. The views expressed in this column are
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