Forming, Declining, and Terminating the Attorney-Client Relationship

Before withdrawal can be analyzed, the essay often must establish that an attorney-client relationship EXISTS, because its existence is what triggers competence, confidentiality, loyalty, and the fiduciary duties. The relationship is ordinarily formed by an express agreement — an engagement letter or oral retention — but California and the Model Rules both recognize that it can arise by IMPLICATION when a person reasonably relies on the lawyer to provide legal services and the lawyer knows or should know of that reliance.

A lawyer who gives specific legal advice to a person seeking help, or who allows a person to believe the lawyer is acting on their behalf, may form a relationship even without a signed contract or payment of a fee. This matters because once the relationship exists, the lawyer owes the full panoply of duties, including confidentiality under Section 6068(e), even to a client who never paid. At formation the lawyer must communicate the scope of the representation and the basis or rate of the fee and expenses, and in California must satisfy the statutory writing requirements of sections 6147 (contingency) and 6148 (over $1,000).

A lawyer may also LIMIT the scope of the representation under Rule 1.2 with the client's informed consent, provided the limitation is reasonable. The lawyer may also DECLINE a matter — indeed must decline where representation would be unlawful, would create a nonconsentable conflict, or where the lawyer lacks competence and cannot cure it — but a lawyer cannot reject the cause of the defenseless or oppressed for personal reasons inconsistent with Section 6068(h).

California Rule 1.16(a) and ABA Model Rule 1.16(a) identify three situations in which a lawyer MUST withdraw (or, before undertaking the matter, must decline). First, withdrawal is mandatory if the representation will result in a VIOLATION of the Rules of Professional Conduct or of other law — for example, if continuing would require the lawyer to assist a client's fraud, to maintain a nonconsentable conflict, or to violate a court order. California's Rule 1.16(a) frames this as the lawyer KNOWING or reasonably should know that the representation will result in a violation.

Second, withdrawal is mandatory if the lawyer's physical or MENTAL CONDITION renders it unreasonably difficult to carry out the representation effectively — illness, impairment, or incapacity that materially impairs competent representation. Third, withdrawal is mandatory if the lawyer is DISCHARGED by the client. The client's right to discharge the lawyer is nearly absolute: a client may fire the lawyer at any time, with or without cause, and the lawyer must withdraw, subject only to a court's power in litigation to require continued representation and to the lawyer's right to a reasonable fee for work performed.

Even when withdrawal is mandatory, the lawyer remains bound by the duty to protect the client's interests on the way out and, in litigation, by the requirement of court permission where the rules of the tribunal so provide.

California Rule 1.16(b) and ABA Model Rule 1.16(b) list grounds on which a lawyer MAY withdraw. The cleanest ground is that withdrawal can be accomplished WITHOUT MATERIAL ADVERSE EFFECT on the client's interests.

Beyond that, a lawyer may withdraw even with some adverse effect when one of the enumerated grounds is present: the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; the client has used the lawyer's services to perpetrate a crime or fraud; the client insists on pursuing a course of conduct that is criminal or fraudulent, or (under the California formulation) an objective the lawyer considers repugnant or imprudent or with which the lawyer has a fundamental disagreement;

the client breaches a material term of the fee agreement or fails substantially to fulfill an obligation to the lawyer (such as paying fees) and has been given reasonable warning that the lawyer will withdraw unless the obligation is met; the representation has been rendered unreasonably difficult by the client; the client knowingly and freely assents to termination; the lawyer's inability to work with co-counsel indicates the client's best interest would be served by withdrawal; or other good cause for withdrawal exists.

A lawyer choosing to withdraw permissively must still weigh the client's interests and, in litigation, must obtain court approval where required. Nonpayment of fees is a classic permissive ground, but only after the client receives reasonable warning and an opportunity to cure, and a lawyer may not withdraw on the eve of trial in a way that prejudices the client merely because fees are outstanding.

Whatever the ground, withdrawal from pending LITIGATION is not unilateral. California Rule 1.16(c) and ABA Model Rule 1.16(c) provide that a lawyer must comply with applicable law requiring NOTICE to or PERMISSION of a tribunal when terminating representation, and that when ordered to do so by a tribunal, a lawyer must CONTINUE representation notwithstanding good cause for terminating. A judge can refuse to let a lawyer out of a case if withdrawal would disrupt the proceedings or prejudice the client, and the lawyer must obey.

Upon termination — whether mandatory, permissive, or by discharge — Rule 1.16(d) imposes affirmative duties to protect the client. The lawyer must take reasonable steps to avoid reasonably foreseeable prejudice: give the client due NOTICE, allow TIME to retain other counsel, cooperate with successor counsel, and promptly RETURN to the client all materials and property to which the client is entitled and any UNEARNED portion of advance fees or expenses the lawyer has not earned or incurred.

California is notably client-protective regarding the FILE: under Rule 1.16(e), at termination the lawyer must, subject to applicable protective orders and non-disclosure obligations, promptly release to the client, at the client's request, the client's papers and property — which California defines broadly to include correspondence, pleadings, deposition transcripts, exhibits, expert reports, and other items reasonably necessary to the client's representation.

Critically, California does NOT permit a lawyer to hold the client's file hostage for unpaid fees the way states recognizing a 'retaining lien' do; the file must be released even if the bill is unpaid, with the lawyer pursuing fees through other means (including the mandatory fee arbitration discussed earlier).

Mandatory vs. Permissive Withdrawal (Rule 1.16)

Exam Hooks

• Mandatory withdrawal: rule/law violation, lawyer impairment, or client discharge.
• Nonpayment is PERMISSIVE only after reasonable warning + chance to cure.
• Litigation withdrawal needs court permission; a court can order continued representation.
• On termination: return unearned fees + the client's papers and property.
• California releases the ENTIRE client file on request even if fees are unpaid (no retaining lien).