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An Ethics Checklist: Withdrawal From A Case

By Travis Pickens

One of the most important skills a lawyer can master is how to withdraw from a case and close the file. Several bar complaints are filed each year simply because the attorney handled the termination of their representation badly. Withdrawing from a case, under any circumstances, is a pivotal emotional point for many clients. Beyond this personal component, there is also a simple matter of withdrawing and closing the file properly, in compliance with the Oklahoma Rules of Professional Conduct.

START WITH THE FEE AGREEMENT

Termination of the attorney-client relationship should be anticipated and covered in your written fee agreement. For this alone, you should consider including:
a. a notice that a motion to withdraw may be filed at any time if proper grounds. (12 O.S. §2005.2 C.)1 

b. a list of the possible grounds for termination, both mandatory and discretionary (Oklahoma Rules of Professional Conduct 1.16).

c. your document retention policy (Note: Begin with ORPC 1.15—five (5) years after the termination of representation relates to client property and client account records only, but it makes a good beginning point for considering whether a file may be safely destroyed. [see “File Retention Guidelines – Rules for Document Retention,” G. Hendryx, The Oklahoma Bar Journal, Vol. 82 – No. 2, 1/15/2011]

d. provisions related to the delivery of the file after termination and payment of last fees and costs (e.g. copy charges, delivery charges, etc.). (See Oklahoma Ethics Opinion 295. Generally, if the lawyer wishes to keep copies of documents the client has furnished, the lawyer should cover the expense. If the lawyer charges for copies, it is permissible to charge for copies requested by the client or new lawyer.)

e. provisions related to a statutory charging lien, and/or common law file-retention lien (see Britton and Gray v. Shelton, 2003 OK CIV APP 40). Generally, you can retain a client’s file if you are owed money unless to do so would prejudice the client. (Not recommended. There are better, less antagonistic, ways to ensure payment. The client, and successor lawyer, can easily argue prejudice.)

f. provisions for mediation and/or arbitration (ABA Formal Opinion 02-425. Generally, lawyers may include mediation and arbitration provisions in fee agreements relating to both fee disputes and malpractice claims, with restrictions. Before using these provisions, you should     discuss them with your malpractice carrier.)

g. be clear as to who exactly your client is, the scope of representation, and when it ends (ORPC 1.2). Define these as narrowly as possible.

h. provisions for “successor” counsel in the event of your death or incapacity (see ORPC 1.3 [5] and Rules Governing Disciplinary Proceedings 12.1 et seq. Generally, every solo lawyer ought to have a succession plan in case of sudden death or disability, and a successor counsel selected to step in and notify the OBA and clients)

i. special considerations if counsel has been court appointed, or if the client lacks or is of diminished capacity.

HAVE PROPER GROUNDS FOR WITHDRAWAL

(ORPC 1.16) Rule 1.16 lists both mandatory and discretionary grounds for withdrawing. Avoiding adverse impact to the client is fundamental; take all reasonable steps to mitigate the consequences to the client. Remember, the client can always fire you, with or without a reason. When you want to withdraw, it is always best to obtain the client’s permission, if possible. You may be required to remain in a case by the tribunal, even if you and the client want to terminate the representation. (ORPC 1.16 (c))  

GIVE PROPER NOTICE

Give reasonable notice to the client (ORPC 1.16), either in person or in writing.   
a. notify and discuss with the client in person if possible (if you have a difficult client, consider asking an assistant to observe and prepare a memo to the file documenting the conference).   

b. act promptly, and while there is still time for employment of other counsel.  
 
c. be courteous, always. Write a “termination” letter assuming it will later be read by the OBA general counsel or a judge. Be thorough and cover your interests, but do not unnecessarily anger your client. Present the reason for your withdrawal, but do so accurately and unemotionally.

d. advise of important matters, deadlines, and statutes of limitations or deadlines (be careful if unsure or not clear).

e. confirm the client’s permission to withdraw, or ask for written consent to withdraw.

f. advise the importance and urgency of employment of successor counsel, or confirm that successor counsel has already been retained.

g. generally explain the major implications of being pro se (receipt of notices, court deadlines, statutes of limitations, etc.)

h. if no consent, advise that there will be a hearing on your motion to withdraw.

i. typically, it is inadvisable to bill the client for your withdrawal. They resent it, even if it can be justified.

j. consider waiving or not charging for nominal, last-minute “closing” costs.

k. consider waiving/reducing some of the final charges/fees as a courtesy to your client to help the client retain someone else. In many cases, that will be the client’s immediate concern (and the one that can create the most client frustration).

l. advise the necessity or benefits, if any, of filing motions for extension and/ or continuance.

m. advise that an order will be forthcoming with a deadline to either have successor counsel enter an appearance, or be deemed pro se, and that a court could hold the client in default if the proper actions are not taken.

n. notify opposing counsel, and if possible, obtain their consent.

STRICTLY FOLLOW STATUTORY PROCEDURE

(12 O.S. §2005.2 and applicable district and local rules). Generally, the statutory procedure required includes a motion with proper grounds and advising the court if the case is currently set for motion docket, pretrial conference or trial; notice to all parties; the client’s signature on the motion, or a certificate that the client has been notified or a good faith effort has been made to locate the client and the client cannot be found; if no successor counsel, the name and address of the party; and an order stating in instances with no successor counsel that the client (unless a corporation) shall be deemed pro se after 30 days.

FILE A MOTION TO WITHDRAW AND OBTAIN AN ORDER

Strictly follow statutory procedure. If your client or any party does not consent, then set a hearing. If your client agrees to your withdrawal, then that typically is the only basis you need. If not, then be as general as possible and avoid a “noisy withdrawal,” stating something that will be used against your client by the other party or that may prejudice them with the judge. In matters of client dishonesty or other prickly circumstances, the statement “professional considerations require termination of the representation” should typically be accepted by the court. The comments to Rule 1.16 counsel that lawyers should remain mindful of their obligations to the client and the court under 1.6 (Confidentiality) and 3.3 (Candor Toward the Tribunal).

IF THERE IS A SUCCESSOR COUNSEL

Cooperate promptly and fully with any reasonable request by the new counsel. Do not criticize the client.

WRITE A CLOSING LETTER TO THE CLIENT

Be courteous, informational and clear.
a. again, assume it could someday be read in court, or by the OBA general counsel

b. be thorough, and consider reference to at least the following:
  • all returned or enclosed original documents and property
  • prior delivery and client’s current possession of all pleadings, correspondence or other papers and property
  • important deadlines and statute(s) of limitations (unless unsure, unclear or otherwise unnecessary – but always advise client to act promptly if there is more to be done)
  • consequences for inaction, e.g. default, dismissals, a barred claim
  • refund of advanced payments for fees and expenses, along with a written summary accounting reflecting your calculations (do this in person if possible and ask the client to initial and approve the accounting and receipt of returned funds)(Note: Fees must be both reasonable and earned under ORPC 1.5. If fees are unearned, or costs not incurred, then they must be returned. See ORPC 1.5 and 1.16)
  • reminding/advising of your document retention policy and that your copy of the file will eventually be destroyed on or after a certain date
  • your policy as to costs/fees for additional copies or follow-up work requested by the client
  • confirm your understanding as to whether there will be a successor counsel
  • offer to cooperate in “any [reasonable] way” with new counsel
  • end on a positive note, and thank them for the opportunity to serve them

DOCUMENT RETENTION AGREEMENT

a. make it part of your fee agreement, either within the agreement or as an attachment

b. be clear that documents will eventually be destroyed after a certain date

c. include provisions regarding costs for additional copies or retrieval expenses

d. return original documents and papers to your client immediately upon the end of representation and get a receipt (avoid keeping original or valuable papers at any time)

e. continue to reasonably safeguard the confidentiality of the information (ORPC 1.6)

f. do not destroy anything for at least five (5) years after the representation ends (ORPC 1.15) AND then you should consider destruction of files on a file by file basis thereafter. Consider at least the following:
  • are there any unasserted claims that are not barred by statutes of limitation (either on behalf of or in defense of a client)
  • double check to make sure you do not have any original documents or papers
  • are there any minors or incapacitated persons involved
  • the risk of destruction as compared to the costs of storage
  • any documents that you may need to defend yourself in the event of a later grievance or malpractice claim
  • any documents that would be difficult or impossible to replace in the event of a later action
  • destruction of the files must be done in a way to reasonably protect the confidentiality of the information (e.g. shredding or burning)
  • the documents must be stored in a way that reasonably maintains the confidentiality of the files
  • whether billing and trust records should be kept indefinitely
  • check with your malpractice carrier regarding any recommendations
  • other law that may apply (e.g. adoption laws)
  • keep an index or identification of the files and cases, both those kept and destroyed
  • always keep copies of the fee agreement and closing letter
  • electronic storage of documents for the long term can be a great alternative

1. The following checklist is designed to address ethical considerations.  It is intended as a guide to best practices and may exceed the minimum requirements imposed by the Rules of Professional Conduct.  All citations are to state law.  Statutory procedure, district court and local rules control, and should always be consulted for current law.

ABOUT THE AUTHOR

Travis Pickens serves as OBA ethics counsel. He is responsible for addressing ethics questions from OBA members, monitoring Diversion Program participants, teaching classes, speaking at continuing education programs and other law-related seminars and writing articles for The Oklahoma Bar Journal and other publications. A former litigator in private practice, he has served as co-chair of the Work/Life Balance Committee and as vice-chair of the Lawyers Helping Lawyers Assistance Program Committee.

Originally published in the Oklahoma Bar Journal -- Dec.10, 2011 -- Volume 82, No. 33

Travis Pickens is the OBA Ethics Counsel. He can be reached at ethics@okbar.org