Section 2.4: Termination and Withdrawal

Termination and Withdrawal

The client-lawyer relationship does not always continue until the final resolution of a matter. A representation can end because the matter is completed, because the client discharges the lawyer, or because the lawyer withdraws. Model Rule 1.16 governs the circumstances under which a lawyer must or may withdraw from a representation, and the strict duties a lawyer owes to the client upon termination of the relationship.

Mandatory Withdrawal (Rule 1.16(a))

A lawyer must decline a representation or withdraw from an ongoing representation if any of the following mandatory grounds are met:

1. Violation of the Rules or Law: The representation will result in a violation of the Rules of Professional Conduct or other law. For example, if a client demands that the lawyer file a completely frivolous lawsuit (violating Rule 3.1) or present testimony the lawyer knows is fabricated (violating Rule 3.3), and the client refuses to back down, the lawyer must withdraw. Similarly, if a conflict of interest arises during the case that cannot be waived or consented to under Rule 1.7, withdrawal is mandatory.
2. Physical or Mental Impairment: The lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. Temporary illnesses or mild stress do not trigger this rule, but severe conditions such as advanced cognitive decline, debilitating clinical depression, or active substance abuse that prevents competent work require withdrawal.
3. Discharge (Fired by the Client): The client discharges the lawyer. A client has an absolute right to discharge their lawyer at any time, with or without cause. Because the relationship relies on trust, a client cannot be forced to retain a lawyer they do not want. (Note: A client's right to discharge is subject to the court's authority. In litigation, a court may deny a motion to substitute counsel if it would disrupt the administration of justice, in which case the lawyer must continue).

Permissive Withdrawal (Rule 1.16(b))

Under Model Rule 1.16(b), a lawyer is permitted to withdraw from representing a client if the lawyer can do so without causing material adverse effect on the client's interests. This is the "no harm, no foul" rule; if withdrawal will not hurt the client, the lawyer does not need a specific reason.

If the withdrawal will cause material adverse effect, the lawyer can still withdraw if one of the following specific permissive grounds is met:

• Persistence in Crime or Fraud: The client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent. Note that the lawyer does not need to know for certain that the conduct is illegal; a reasonable belief is sufficient.
• Past Crime or Fraud: The client has used the lawyer's services to perpetrate a crime or fraud in the past.
• Repugnant or Disagreed-Upon Action: The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement. This covers non-criminal conduct that offends the lawyer's moral code or professional judgment.
• Failure to Fulfill Obligation: The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled. The most common example is the non-payment of legal fees. A lawyer cannot withdraw immediately for non-payment; they must first give the client a clear warning and a reasonable opportunity to pay.
• Unreasonable Financial Burden: The representation will result in an unreasonable financial burden on the lawyer. This is a high standard and typically requires a showing of severe, unexpected financial hardship to the lawyer or firm.
• Client Uncooperativeness: The representation has been rendered unreasonably difficult by the client (e.g., the client refuses to communicate, lies to the lawyer, or fails to co-operate in discovery).
• Other Good Cause: A general catch-all for other situations where the relationship has broken down.

Court Approval and Continuances (Rule 1.16(c))

A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. In litigation, a lawyer cannot simply walk away from a case. They must file a motion for leave to withdraw.

If the tribunal orders the lawyer to continue the representation, the lawyer must continue, even if there is a valid mandatory or permissive ground for withdrawal. For example, if a client discharges a lawyer on the eve of trial, but the judge refuses to allow the withdrawal because it would delay the trial, the lawyer must represent the client competently, despite being fired and despite any personal disagreements.

Duties Upon Termination (Rule 1.16(d))

Upon termination of the representation, a lawyer must take steps to the extent reasonably practicable to protect the client's interests. The lawyer must perform these duties regardless of the reason for the withdrawal or who terminated the relationship:

• Reasonable Notice: Give the client adequate notice of the withdrawal so they are not caught off guard.
• Time to Find New Counsel: Allow the client sufficient time to employ other counsel, especially if deadlines are approaching.
• Surrendering Client Property: Return all papers and property to which the client is entitled. This includes the client's files, original documents, evidence, and pleadings. The lawyer may retain copies of the files, but must do so at the lawyer's own expense. Although Rule 1.16(d) allows a lawyer to retain papers to the extent permitted by other law (such as a statutory attorney's lien for unpaid fees), the lawyer must not exercise this lien if doing so would cause material harm to the client's case.
• Refunding Fees: Refund any advance payment of fee or expense that has not been earned or incurred. If the client paid a flat fee or a retainer as an advance payment of fees, the lawyer must calculate the work performed and return the unearned portion. A true "engagement retainer" (paid solely to secure the lawyer's availability and preclude them from representing opponents) is generally non-refundable if reasonable, but advance payments for services must be refunded.