Title: Bowing Out Professionally
1Bowing Out Professionally
- Effective Settlements and How to Ethically
Withdraw to Avoid Malpractice
2Withdrawal
- Prior to entry of appearance before a tribunal
must comply with -- - Rule 4-1.16
- After entry of appearance must comply with
- Rule 4-1.16 and
- Any applicable law requiring notice to or
permission of the tribunal - Rule 4-1.16(c)
3Rule 4-1.16(c)
See Rule 4-1.2 for Scope of Representation and
Rule 55.03(b)(3) for limited entry of appearance
and termination of limited appearance
- (c) A lawyer must comply with applicable law
requiring notice to or permission of a tribunal
when terminating a representation unless the
lawyer has filed a notice of termination of
limited appearance. Except when such notice is
filed, a lawyer shall continue representation
when ordered to do so by a tribunal
notwithstanding good cause for terminating the
representation.
4Mandatory WithdrawalRule 4-1.16(a)
- The representation will result in violation of
the rules of professional conduct or other law - The lawyers physical or mental condition
materially impairs the lawyers ability to
represent the client or - The lawyer is discharged.
5Permissive WithdrawalRule 4-1.16(b)
- (1) Withdrawal can be accomplished without
material adverse effect on the interests of the
client - (2) The client persists in a course of action
involving the lawyers services that the lawyer
reasonably believes is criminal or fraudulent - (3) The client has used the lawyers services to
perpetrate a crime or fraud
6Permissive WithdrawalRule 4-1.16(b)
- (4) The client insists upon taking action that
the lawyer considers repugnant or with which the
lawyer has a fundamental disagreement - (5) The client fails substantially to fulfill an
obligation to the lawyer regarding the lawyers
services and has been given reasonable warning
that the lawyer will withdraw unless the
obligation is fulfilled
7Permissive WithdrawalRule 4-1.16(b)
- (6) The representation will result in an
unreasonable financial burden on the lawyer or
has been rendered unreasonably difficult by the
client or - (7) Other good cause for withdrawal exists.
8Duties After WithdrawalRule 4-1.16(d)
- Upon termination of representation, a lawyer
shall take steps to the extent reasonably
practicable to protect a client's interests, such
as - giving reasonable notice to the client,
- allowing time for employment of other counsel,
- surrendering papers and property to which the
client is entitled and - refunding any advance payment of fee or expense
that has not been earned or incurred. - The lawyer may retain papers relating to the
client to the extent permitted by other law.
9Duties After Withdrawal
- Still subject to Rules of Professional
Responsibility - See particularly --
- Rule 4-1.6 Confidentiality of Information
- Rule 4-1.9 Duties to Former Clients
- Rule 4-1.15 Safekeeping Property
10Actual Cases Discipline Imposed
11Actual Cases Discipline Imposed
12Actual Cases Discipline Imposed
13Actual Cases Discipline Imposed
14Actual Cases Discipline Imposed
15Informal Opinions
- Opinion Number 20060053 - Rule Number
- QUESTION Attorney has reason to believe that a
Trustee misappropriated, and perhaps stole, funds
from a Trust. Since Attorney represented the
Trustee, is Attorney permitted to notify and
inform the other beneficiaries of the Trustee's
management of the Trust and of Attorney's
suspicions? To Attorney's knowledge, the other
beneficiaries have received no information
regarding the Trust, and they have not contacted
Attorney. - ANSWER Attorney may not disclose the information
to the other beneficiaries, unless Attorney has
the consent of the Trustee. If the Trustee will
come forward with the necessary information,
Attorney may continue to represent the Trustee in
attempting to resolve any problems. It is
permissible for Attorney to advise the Trustee
that Attorney will withdraw if the Trustee is
unwilling to take the steps Attorney believes to
be necessary, including consenting to disclosure
to the other beneficiaries. It is also
permissible for Attorney to withdraw, at this
point, regardless of the steps the Trustee is
willing to take. If the Trustee is not willing to
take the steps necessary to resolve the problem
and Attorney believes that the Trustee's conduct
is fraudulent or criminal, Attorney must withdraw
if Attorney's representation would assist the
fraudulent or criminal activity.
16Informal Opinions
- Opinion Number 20030049 - Rule Number 1.1
1.16 - QUESTION Attorney's law firm recently lost the
attorneys in its litigation department and those
attorneys are not able to continue to handle the
litigation. Before leaving, one of the attorneys
won a trial on a personal injury case. The case
was reversed and remanded for new trial.
Attorney's firm does not have anyone who can
represent this client adequately. Attorney's firm
has been unsuccessful in securing other counsel
for the client. The case is not on a trial
docket. May Attorney's firm withdraw under these
circumstances? - ANSWER It is permissible for Attorney's firm to
seek to withdraw, if you the firm can do so at a
time that will not be materially adverse to the
client. Whether a case is on a trial docket would
be one factor in determining whether withdrawal,
at a given time, will be materially adverse.
However, there could be other factors to
consider, such as discovery, court orders, etc.
If there are no factors that will cause
withdrawal to be materially adverse to the
client, Attorney's firm may seek to withdraw,
notwithstanding the fact that the client has been
unable to find other counsel.Whether Attorney's
firm is permitted to withdraw is entirely in the
discretion of the court. If the court refuses to
allow withdrawal, under Rule 4-1.16(c),
Attorney's firm must stay in the case and
represent the client. Attorney's firm should be
sure to inform the court of its concerns about
its ability to adequately represent the client,
in the course of seeking leave to withdraw.
17Informal Opinions
- Opinion Number 20030047 - Rule Number 1.16(d)
1.15 - QUESTION If Attorney sends a client a courtesy
copy of all pleadings at the time of filing and a
copy of all pleadings filed by opposing counsel
(with a notation that it is a courtesy copy for
the client's information and safekeeping), is it
necessary to copy the file and provide the
documents again to the client? May attorney
charge for copies of documents previously sent to
client? - ANSWER It is permissible for copies provided to
the client during the course of the
representation to serve as client's file, or a
portion of the client's file, if two conditions
are met. First, Attorney would have had to
provide an explanation of this process prior to
sending the copies. Second, the original of the
file belongs to the client. Therefore, if there
is an original in the file, a copy does not
fulfill the obligation to the client unless the
attorney and client have agreed that it will. If
both conditions are not met, attorney should
provide the file to the client and keep copies at
Attorney's own expense.
18Informal Opinions
- Opinion Number 20030010 - Rule Number 1.16
- QUESTION Attorney represented client in a matter
which is now concluded. Attorney advanced funds
for court reporter fees and transcripts. The
client has requested copies of the transcripts,
but has not reimbursed Attorney for these
expenses. Must Attorney provide copies of the
transcripts to the client? - ANSWER Rule 4-1.16 requires Attorney to return
the client's property to the client at the
conclusion of the representation. However, under
Formal Opinion 115, as amended, Attorney may
withhold items for which Attorney has paid
out-of-pocket and has not been reimbursed.
19Informal Opinions
- Opinion Number 20000172 - Rule Number 1.3
1.16(b) 1.5 - QUESTION Attorney would like to add a provision
to Attorney's standard engagement letter for
civil cases, particularly domestic relations
cases. Is it permissible to state in the
engagement letter that if the client does not
make payment, Attorney will stop working on his
or her case? Attorney would like to state that
Attorney will not continue to work on a client's
case if no payments are made. - ANSWER Attorney may not include the provision
Attorney proposes in Attorney's engagement
letter. Under Rule 4-1.3, Attorney has an
obligation to diligently represent Attorneys
client, unless Attorney withdraws. If Attorney
has not been paid, Attorneys option is to
continue to diligently represent the client and
seek payment, or seek to withdraw. Attorney may
seek to withdraw under Rule 4-1.16(b), only if
withdrawal may be accomplished without material
adverse effect on the interests of the client.
20Informal Opinions
- Opinion Number 960110 - Rule Number 1.16
- QUESTION Attorney represents a client in a
matter which is set for hearing in several
months. The client did not divulge certain
information to Attorney which Attorney has now
learned. If Attorney had been aware of this
information, Attorney would not have taken the
case. May Attorney seek to withdraw? - ANSWER Attorney may withdraw, if Attorney is
allowed by the tribunal to do so, as long as
Attorney is not at a point in the proceedings
such that the withdrawal will have a materially
adverse effect on Attorneys client.
21Informal Opinions
- Opinion Number 950248 - Rule Number 1.16
- QUESTION Attorney has lost contact with the
clients. Attorney wishes to withdraw. What is
Attorney required to do to notify the clients? - ANSWER Attorney has a duty to take all
reasonable steps to contact the clients. It is
unclear from the information Attorney has
provided whether Attorney has taken sufficient
steps under the circumstances. Attorney is not
required to hire a private investigator but
Attorney should conduct a reasonable
investigation. Attorney has not indicated whether
Attorney has checked with various agencies or
businesses that may have received notification of
an address change. The Department of Revenue
(drivers and motor vehicle licenses), employers,
banks and relatives all may be appropriate to
contact, depending on the circumstances. Attorney
is not required to give notification to the
clients by publication if Attorney is unable to
contact them any other way, but Attorney may do
so. Attorney should also seek guidance from
Attorneys malpractice insurer's claims
prevention office, regarding any additional steps
they may recommend.
22Informal Opinions
- Opinion Number 940175 - Rule Number 1.165.24
- QUESTION Attorney is the trustee in bankruptcy
for an attorney who is now deceased. The deceased
attorney had closed client files from many years
of practice. What should the trustee do about the
files? - ANSWER Rule 5.24 provides a mechanism for
appointment of a trustee to wind up the practice
of a deceased attorney. That rule would not
prohibit the bankruptcy trustee from also being
the trustee for the practice. The attorney who is
appointed trustee under Rule 5.24 should make an
effort to return the files to the clients.
23Informal Opinions
- Opinion Number 940065 - Rule Number
1.51.16(d) - QUESTION Attorney accepted a case on a flat fee
basis. Attorney now wishes to withdraw before the
case is concluded due to the client's lack of
cooperation. Attorney states that, as a result of
client's lack of cooperation, attorney fees
valuing several times the flat fee paid have been
provided. May Attorney withdraw and, if so, what
amount of refund, if any, is owed the client? - ANSWER Attorney may ask the court for leave to
withdraw. This office cannot resolved factual
issues such as the amount of a refund owed in the
context of an informal advisory opinion.
24Informal Opinions
- Opinion Number 940059 - Rule Number
1.41.16(d) - QUESTION Attorney is representing the class in a
class action suit. One of the members of the
class is recruiting class members and obtaining
the attorney fee which is forwarded to Attorney.
May Attorney accept these people as clients in
this manner? - ANSWER Yes. Once Attorney accepts them as
clients, Attorney must communicate with them
directly affirming Attorneys representation and
communicating about the case before taking any
action as their attorney. If they change their
mind after direct communication, Attorney must
refund the fee under Rule 4-1.16. This opinion
does not consider any restrictions the court may
impose.
25Informal Opinions
- Opinion Number 940038 - Rule Number 1.16
- QUESTION Attorney and the client have disagreed
over the amount of settlement that would be
reasonable. As a result, the client has
discharged Attorney twice but has returned when
other attorneys told the client that Attorneys
assessment of the case was reasonable. May
Attorney withdraw? - ANSWER Yes. Attorney must comply with all of the
requirements of Rule 4-1.16(d), including the
requirement that Attorney not withdraw if the
withdrawal would have a materially adverse impact
on the interests of Attorneys client.
26Informal Opinions
- Opinion Number 940027 - Rule Number 1.6
- QUESTION Attorney's client is receiving
Medicaid. Attorney has obtained agreement from an
insurance company to settle a personal injury
case. Statutes require both Attorney and client
to notify Social Services of the settlement.
Client has withdrawn authority to settle and
discharged Attorney after Attorney informed
client of this obligation. May Attorney report to
Social Services? - ANSWER If Attorney reports without client's
consent, Attorney will violate the
confidentiality obligation under Rule 4-1.6.
Attorney should counsel client regarding the
obligations under the statutes prior to
withdrawing. If client will not consent to
reporting, Attorney must remain silent and
withdraw under Rule 4-1.16(a)(1).
27Informal Opinions
- Opinion Number 940019 - Rule Number 1.16
- Question 1. May Attorney move to withdraw from a
criminal case if the client is uncooperative and
will not communicate or assist with the defense?
The Attorney will warn the client that Attorney
will withdraw if the situation doesn't improve
before the Attorney actually withdraws. - Question 2. If a client who is a criminal
defendant fails to make a court date and a
warrant is issued and the client has had no
contact with Attorney for several weeks or
months, may Attorney move to withdraw? - ANSWER Yes to both questions. However, the fact
that the Rules of Professional Conduct allow
Attorney to move to withdraw does not affect the
authority of the court to refuse to sustain that
motion.
28Informal Opinions
- Opinion Number 940011 - Rule Number 1.16
- QUESTION Attorney accepted a client in a
dissolution case. Attorney accepted the retainer
and the filing fee but has not filed. If Attorney
returns the filing fee and retainer, may Attorney
withdraw? - ANSWER Yes.
29Informal Opinions
- Opinion Number 930099 - Rule Number 1.16
- QUESTION May an attorney withdraw from a case
due to the client's interference with the
representation? - ANSWER Yes. Attorney must comply with all of the
requirements of Rule 1.16(d).
30In re Donaho 98 S.W.3d 871 (Mo. banc 2003)
- Donaho, licensed in both Illinois and Missouri
agreed to represent Campbell in a
post-dissolution action - Campbell paid him 700 fee and 60 filing fee
- Donaho prepared the motion and sent it to
Campbell, who promptly signed and returned it - Donaho took no further action
31In re Donaho 98 S.W.3d 871 (Mo. banc 2003)
- Six months later Donoho closed his Illinois
office and opened a new office in St. Louis - Did not inform Campbell of new address or
telephone number - Campbell
- Left messages on Donahos home phone which he did
not return - Tried to contact him at new office and he did not
respond - Send certified letter to new office, which he
received but did not respond
32In re Donaho 98 S.W.3d 871 (Mo. banc 2003)
- Campbell demanded return of fee
- Donaho responded that he would return the fee if
Campbell signed a complete release - Donaho drafted the release, but did not advise
Campbell to seek independent advice - Campbell signed and returned the release
- Donaho failed to return the money as promised
33In re Donaho 98 S.W.3d 871 (Mo. banc 2003)
- Campbell filed suit in small claims and obtained
a default judgment for 765, which Donaho did not
pay - Campbell filed complaint with OCDC
- Disciplinary committee indicated to Donaho that
timely payment of the judgment would be
considered a mitigating factor and would be
viewed favorably if satisfied by a certain date - Donaho faxed copies of two money orders made out
to Campbell and represented that they had been
sent to Campbell - Committee admonished Donaho and closed file
- Instead of mailing the money orders to Campbell,
however, Donaho cashed them for his own use
34In re Donaho 98 S.W.3d 871 (Mo. banc 2003)
- Campbell filed second complaint with OCDC
- Among the rule violations the committee included
in the charge was a violation of Rule 4-1.16(d) - Supreme court stated As noted in the
disciplinary rules, perhaps no professional
shortcoming is more widely resented than
procrastination. Rule 4-1.3, Comment. Of course,
the fact that Respondent failed to refund the
advance fee upon the termination of
representation as required by Rule 4-1.16(d)
compounds the problem. - Supreme Court suspended Donahos license
indefinitely with leave to apply for
reinstatement no sooner than twelve months after
date of opinion - Supreme Court noted in passing that the
evidence suggests that Donaho may have been
suffering from a drinking problem during the time
in question
35In the Interest of P.D. 144 S.W.3d 907 (Mo.App.,
E.D. 2003)
- Lawyer represented natural mother in termination
of parental rights case - Hearing on September 23
- Mother was present
- Case set for trial on December 17
- Lawyer sent mother letter confirming trial date
- Date of trial Mother did not appear
- Lawyer moved for continuance, which court denied
- Lawyer orally moved to withdraw, which court
sustained
36In the Interest of P.D. 144 S.W.3d 907 (Mo.App.,
E.D. 2003)
- On appeal mother claimed trial court abused its
discretion is allowing her lawyer to withdraw - Eastern District, citing Rule 4-1.16 and a local
court rule, held that trial court abused its
discretion because there was nothing in the
record that lawyer had provided mother with
notice of his intent to request to withdraw - Judgment of termination was reversed
37Effective and Ethical Settlements
- Rule 4-1.2
- A lawyer shall abide by a clients decisions
concerning the objectives of the representation - A lawyer shall abide by a clients decision
whether to settle a matter - Comment 3 At the outset of the representation,
the client may authorize the lawyer to take
specific action on clients behalf without
further consultation
38Effective and Ethical Settlements
- Rule 4-1.4 requires that the lawyer explain a
matter to the extent reasonably necessary to
permit the client to make informed decisions
regarding the representation - Interplay between Rule 4-1.2 and 4-1.4
- Clients decision whether or not to settle a case
must be an informed decision
39Effective and Ethical Settlements
- Rule 4-4.1 prohibits a lawyer from making a false
statement of material fact to a 3rd person while
representing a client - What about false statements made by counsel
during a settlement negotiation? - Comment 2 Under generally accepted conventions
in negotiation, certain types of statements
ordinarily are not taken as statements of
material fact (e.g., estimates of value or the
clients intentions as to an acceptable
settlement of a claim)
40In re Coleman, 295 S.W.3d 857 (Mo. banc 2009)
- Client hired Coleman to represent her in 3
separate civil actions (med. malpractice,
wrongful term. and discrimination cases) - During next 5 years, client paid Coleman up to
50,000 in fees and expenses. - When client no longer able to pay additional
fees, Coleman suggested converting the 3 cases to
contingent fee agreements. Client agreed.
41In re Coleman
- In consideration of one-third (1/3) of any
recovery, I agree to forego my hourly rate, and
instead, agree to accept one-third of any
recovery. However, because I am taking a risk
with you on this case, and because I am more
familiar with the legal trends relative to
judgments, settlements, and summary disposition,
you agree I shall have the exclusive right to
determine when and for how much to settle this
case. That way, I am not held hostage to an
agreement I disagree with.
42In re Coleman
- The employer in the discrimination case offered
to settle the clients claim for 20,000. The
client rejected the offer. - Coleman settled the case without his clients
consent. Coleman submitted settlement documents
to the client. Client refused to sign and
insisted on proceeding to trial. - Coleman withdrew in all 3 cases and filed a
motion to enforce settlement in the
discrimination case.
43In re Coleman
- Violations found by the Court
- Rule 4-1.2 (Scope of Representation) by accepting
a settlement offer without client consent and
filing a motion to enforce the settlement - Rule 4-1.7 (Conflict of Interest) by entering
into a written agreement with his client
purporting to give Coleman exclusive settlement
rights and taking actions adverse to the clients
interests - Rule 4-1.16 (Terminating Representation) by
failing to protect his clients interests upon
termination - Rule 4-8.4 (Misconduct) by engaging in conduct
prejudicial to the administration of justice. - Discipline ordered one year stayed suspension
with probation.
44Questions?