Withdrawing from a case usually comes from irreconcilable differences between attorney and client. The manner and means of terminating that relationship can affect the likelihood that a malpractice claim will be presented.
First, know and follow the procedures applicable in your jurisdiction. Many states, like California, provide in their own Rules of Professional Conduct when withdrawal is mandatory and when it is permissive. Other states follow the ABA Model Code of Professional Responsibility (DR 2-110) or the Model Rules of Professional Conduct (Rule 1.16).
When a matter is pending in a tribunal, your jurisdiction will likely have specific procedural requirements to follow. ABA Ethical Consideration 2-32 provides a good overview of the considerations to keep in mind:
Considerations when Withdrawing from a Case
A lawyer withdrawing from a case should not do so without careful consideration and attempt to minimize the possible adverse effect on the rights of the client and the possibility of prejudice to the client. Even when a withdrawal is justifiable, a lawyer should do the following:
- Give due notice of withdrawal
- Suggest employment of other counsel
- Deliver all papers and property to which the client is entitled
- Cooperate with counsel subsequently employed
- Attempt to minimize the possibility of harm to the client
- Refund the client any compensation not earned during the employment
Do not procrastinate once a problem materializes or becomes inevitable. Very few problems serious enough to motivate withdrawal crop up overnight.
When a serious problem is first recognized, it should be discussed with the client and memorialized in writing. If that does not resolve the issue and withdrawal appears to be the only course, advise the client again in writing and stress the need for the client to obtain new counsel. See, e.g., ABA Model Code of Professional Conduct DR 4-101.
Avoiding a Malpractice Claim due to Withdrawing from a Case
Make an effort to have the client sign a substitution of attorneys, and only make the motion to withdraw if further delay would jeopardize the client’s case. When making the motion, take care to avoid disclosure of attorney-client communications or set forth any information that would weaken the client’s case or provide undue leverage to the opponent.
In addition to any formal procedures that must be followed, send a disengagement letter confirming the reason for the termination, address any remaining fee issue and set forth any upcoming deadlines or procedural requirements which will have to be addressed by the client or successor counsel.
The disengagement letter serves the added purpose of establishing the outside date for the commencement of the applicable statute of limitations period for malpractice claims. In drafting this letter, bear in mind this letter will be an important exhibit should a claim be brought against you. The letter should be professional, dispassionate, clear and accurate.
The extent to which the client is entitled to the attorney’s file and work product will vary from jurisdiction to jurisdiction, and it is important to determine the rules in your particular state. Unless your jurisdiction permits you to withhold some or the entire file for non-payment of fees or costs, (see, e.g. §43, Restatement of Law Governing Lawyers [Third]), any request for the file should be responded to with dispatch and without imposition of conditions.
Before sending the file, make a paper or electronic copy of the entire file. A letter describing the contents of the file should accompany the file, and the client or successor counsel should be asked to sign and date an acknowledgment of receipt of the material. If not covered in your engagement letter, the disengagement letter should also advise the client how long you will retain the file before destruction.
If there are remaining fee issues, avoid any formal proceedings until after the applicable statute of limitations for a malpractice claim has expired, if possible. A cross-complaint for malpractice is frequently the response to an action for fees.
John M. Drath specializes in the defense of professional liability matters with an emphasis on the defense of legal professionals. He is a Fellow in the American College of Trial Lawyers, a member of the American Board of Trial Advocates, the Defense Research Institute, a Certified Specialist in Legal Malpractice Law in California and a past president of the Association of Defense Counsel of Northern California. He is with Bishop Barry Drath in Emeryville, California.
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