How to safely withdraw from a case
By Diane Karpman
Sometimes legal representation just doesn’t work out and lawyers find they need to terminate or withdraw from a case. Rule of Professional Conduct 3-700 governs this area. The overarching theme is that the withdrawal should not result in foreseeable prejudice to the interests of the client, if at all possible. Obviously, if a case is pending at a tribunal, permission of the court will be required.
Therefore, in determining if you can get out of a case, the predicate is the absence of unreasonable prejudice to the client’s rights. That includes giving notice to the client and an opportunity for the client to retain new counsel.
The easiest method to accomplish this is to request that the client sign a substitution. However, much to the dismay of lawyers, sometimes they refuse. California Code of Civil Procedure § 284 provides that counsel may be changed at any time before or after judgment or final determination by (1) consent of both the client and the attorney or (2) by order of the court upon application by the client or the attorney, and after notice from one to the other (Motion Pursuant to 3.1362 of the Rules of Court).
When filing a Withdrawal Motion, it’s a good idea to request a continuance of at least 30 days to give new counsel a chance to “get up to speed” if the case is active. There are two types of withdrawal (mandatory and permissive). This article will address mandatory withdrawal.
Mandatory withdrawal is required if the lawyer knows the client is up to “no good” or “asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person.” Rule 3-700(B)(1) This will occur when you file a case and (during discovery) realize that the client may have “exaggerated,” or in the course of pursing the case, you realize the client is actually “truth challenged.” Get out of the case, because there is potential malicious prosecution exposure for both you and your client.
Another source of fruitful justifications for withdrawal exists in Rule 3-700(B)(2), where the member “knows or should know that continued employment will result in violation of these rules or the State Bar Act.”
For a terrific list of possible scenarios that can provide great justifiable grounds for withdrawal, see Manfredi & Levine v. Superior Court(1998) 66 Cal. App. 4th 1128, which lists the nine types of conflicts that can arise supporting a motion to withdraw on these grounds. There could be others, because as Justice Gilbert notes, “Conflicts come in all shapes and sizes,” Aceves v. Superior Court (1996) 51 Cal. App.4th 584.
Generally, there will be more than one of the types listed, and your declaration should suggest the conflicts that exist, vaguely. There is a helpful judicial form for this, and the accompanying declaration should be couched in general terms and without compromising the confidentiality of the attorney-client relationship. Exercise caution, since improper withdrawal can lead to a variety of client claims, including love letters from the State Bar, or even claims of legal malpractice.
In filing a formal motion to be relieved as counsel there are a few nuance issues to remember. First, request that the motion be heard in camera, out of the presence of opposing counsel. Excluding opposing counsel was not included in Manfredi, and it made full disclosure of the problem, even in camera, difficult for the lawyers involved (full disclosure: I was appellate counsel). There is inherent tension, because the judge may be the fact finder in the client’s case, so going into detail might create prejudice to the clients case. You must be very careful.
At the in camera proceeding, if the client opposes your withdrawal, it is advisable to allow the client to proceed with his or her position first. Since the client would not sign a substitution, there probably is a breakdown in the attorney-client relationship; possibly you also are not being compensated for outstanding work, etc.
In allowing the client to present their side first, it’s almost inevitable that they will attack the lawyer, thus giving rise to a “self defense” situation and a waiver of attorney-client privilege/confidentiality. Note, that waiver is limited to issues involving withdrawal, so you are prohibited from disclosing everything you know from the last 20 years of representation.
Generally, lawyers are allowed to defend themselves in fee arbitration, legal malpractice claims and at the State Bar.
Retain this article, since it is almost a checklist of how to withdraw. Remember, some clients will make false promises designed to keep you in a case beyond when you think you can withdraw. This protocol might provide you with a solution. The breakdown of the attorney-client relationship will be apparent to the court when the client attacks the lawyer in camera. Therefore, although failure to compensate may not be enough, when coupled with an attack, withdrawal is mandated.
This column was inspired by a recent request from a California lawyer. If you have ideas, please forward them.
• Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at email@example.com.