Tips for Ethically Navigating Withdrawal from Litigation
LACBA Update, August 2013
By Diana K. Rodgers of Robie & Matthai. Rodgers is a member of LACBA’s Professional Responsibility and Ethics Committee. The opinions expressed are her own.
Withdrawal from representation of a client, if not done properly, could lead to unintended and unfortunate results, including State Bar disciplinary action or malpractice claims. Withdrawal implicates a number of ethical duties, some of which are not so obvious. Keeping these duties in mind can assist in smooth sailing through the withdrawal process.
Withdrawal in general. The ability of an attorney to withdraw is governed by two provisions of California law. The first, Code of Civil Procedure Section 284, Substitution–Consent or Order, provides that an attorney in an action or a special proceeding “may be changed” at any time before or after judgment or final determination upon consent of both the client and the attorney, or upon order of the court. The second, Rule 3-700 of the Rules of Professional Conduct, provides the basis for both mandatory and permissive termination of the attorney-client relationship. Pursuant to Rule 3-700, if permission to withdraw is required by the court, an attorney cannot withdraw without that permission, and the attorney must take steps to avoid prejudice to the rights of the client. These rules apply whether the withdrawal is mandatory or permissive.
The attorney must avoid foreseeable prejudice to the client. Rule 3-700(A)(2) provides that a member “shall not” withdraw from employment “until” the attorney has taken “reasonable steps” to avoid “reasonably foreseeable prejudice” to the client. Such steps include giving due notice to the client, allowing time for employment of other counsel, complying with Rule 3-700(D) regarding the return of papers and unearned fees, and complying with applicable laws and rules.1 Additional reasonable steps that should be taken will depend on the particular facts and circumstances of each case.
Not only the timing but the manner of withdrawal can result in prejudice to the client. For example, an attorney’s withdrawal from representation on the Friday before a Monday trial was found to be prejudicial to and an abandonment of the client because the client had insufficient warning his attorney would withdraw and insufficient time to obtain new counsel.2 When an attorney’s personal situation made it difficult for him to vigorously pursue his client’s objective, and instead of seeking a continuance, the attorney conditioned withdrawal on the acceptance of a specific settlement, the client was prejudiced.3 Prejudice can also be found by an attorney’s failure to take any steps to prevent prejudice to the client.4
An attorney has a continuing obligation to the client as long as the attorney remains attorney of record. An attorney remains attorney of record until a substitution of attorney is filed with the court or the court has granted its permission for withdrawal.5 Until that time, the attorney has continuing obligations to the client6 and should take care not to ignore them. These obligations include the duties of confidentiality,7 loyalty,8 communication,9 and competence,10 to name the most important ones. Of course, some duties continue even after the representation has ended, such as the duty of confidentiality and, in some cases, the duty of loyalty. The specific obligations created by these duties are determined by the circumstances existing in each case.
Until the substitution is filed or court order is made, the attorney’s acts may bind the client if the other side has no knowledge of the change in counsel.11
An attorney has a duty to act competently until a substitution of counsel is filed or the court orders withdrawal. An attorney has a continuing duty to act competently to protect the client’s interests while he or she is attorney of record.12 Rule 3-110, Failing to Act Competently, provides that a member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence. “‘Competence’ in any legal service shall mean to apply the (1) diligence, (2) learning and skill, and (3) mental, emotional and physical ability reasonably necessary for the performance of such service.” Abandoning the client, or delegating the case to a non-lawyer or paralegal without supervision, could be construed as failing to act competently.13
An attorney must release the client’s file at the client’s request. Rule 3-700(D) provides that an attorney whose employment has been terminated shall “promptly” release to the client, at the request of the client, “all the client papers and property.” “Client papers and property” are defined in the Rule and include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and “other items reasonably necessary to the client’s representation, whether the client has paid for them or not.”14 The attorney may make a copy of the client’s file at his or her own expense.15 This is prudent because trying to reconstruct a client file after the representation has ended (in the event of claims of malpractice, for example) may not be possible. For more in-depth discussions of the duties of attorneys with respect to client files, see California State Bar Formal Ethics Opinions Nos. 1994-134, 2001-157, and 2007-174.
Must an attorney turn over work product to the client upon termination of the representation? In Metro-Goldwyn-Mayer, Inc. v. Superior Court, the court noted that two lines of cases exist.16 In the first, work product belongs to the client. In the second, the attorney is the exclusive holder of the privilege for purposes of adversarial discovery conducted in the course of litigation.17 The M.G.M. Court found that the language of Section 2018 “makes clear the legislative intent to protect absolute work product from disclosure except in rare circumstances.”18 The court also read Rule 3-700 as allowing attorneys to withhold qualified work product unless it would “unfairly prejudice” the client or “will result in injustice.”19 In White v. Experian Information Solutions, Inc., 2009 U.S. Dist. LEXIS 117979, the court found that “Rule 3-700 is indeed modified by the protection afforded to absolute work product.”20 The court noted that California “authority is conflicted as to whether this ability to exclude work product from the client file is limited to cases in which the exclusion will not result in reasonably foreseeable prejudice to the client’s rights or the work product is reasonably necessary to the client’s representation.”21 (The rule is different in the context of a malpractice case.22)
Ethics opinions vary in their approaches. San Francisco Bar Association Ethics Committee Formal Opinion No. 1990-1 opines that an attorney has no ethical obligation to disclose uncommunicated or absolute work product unless the failure to do so would result in reasonably foreseeable prejudice to the client’s rights. Los Angeles County Bar Association Professional Responsibility and Ethics Committee Formal Opinion No. 330 opines that work product for which the client may be billed belongs to the client, while Formal Opinion No. 405 opines that in most cases, “virtually everything in a client’s file is the property of the client….”
Despite these various approaches, the focus of Rule 3-700 is avoiding prejudice to the client. Keep this focus in mind when “promptly” returning the client’s papers and property.
1 Cal. R. of Prof’l Conduct R. 3-700(A)(2).
2 Vann v. Shilleh, 54 Cal. App. 3d 192, 198 (1975).
3 Nehad v. Mukasey, 535 F. 3d 962, 970-71, 973 (9th Cir. 2008).
4 See Read v. State Bar, 53 Cal. 3d 394, 412-13 (1991).
5 See Code Civ. Proc. §284; Cal. State Bar Formal Op. No. 1994-134.
6 Cal. State Bar Formal Op. No. 1994-134.
7 Cal. R. of Prof’l Conduct R. 3-100.
8 Cal. R. of Prof’l Conduct R. 3-310.
9 Cal. R. of Prof’l Conduct R. 3-500, R. 3-510; Bus. & Prof. Code §6068 (m).
10 Cal. R. of Prof’l Conduct R. 3-110.
11 See Sherman v. Panno, 129 Cal. App. 2d 375, 379 (1954).
12 Cal. R. of Prof’l Conduct R. 3-110.
13 Cal. R. of Prof’l Conduct R. 3-110, Comments.
14 Cal. R. of Prof’l Conduct R. 3-700(D)(1).
15 See Cal. R. of Prof’l Conduct R. 3-700, Comments.
16 Metro-Goldwyn-Mayer, Inc. v. Superior Court, 25 Cal. App. 4th 242, 247 (1994).
18 Id. at 248.
19 Id. at 249, n.8.
20 White v. Experian Information Solutions, Inc., 2009 U.S. Dist. LEXIS 117979 at *23.
22 Code Civ. Proc. §2018.080.
LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at firstname.lastname@example.org.