Professional Responsibility Questions            The choice to represent/withdraw                      

 

1.   Why is it easier to reject a client than to withdraw from representation once undertaken?

 

No rules limit rejection of clients; Rule 1.16 limits withdrawal

Can’t always withdraw

Duties exist that withdrawal does not end

Conflicts arise that withdrawal will not cure

 

2.  In most jurisdictions, an attorney-client relationship can be established in three ways.  What are those?

 

Agreement (needn’t be in writing to create the duty)

Appointment

Assumption (the client’s reasonable reliance)

•         Foreseeability: tort theory – advice + reasonably foresee harm

•         Reliance: contract theory + advice + reasonable reliance

 

3.  What are three steps you can take to insure that you do not represent someone with whom you have spoken ?

 

Simply apply DUTY-BE-GONE to your conversations with third parties and potential clients, and you will disclaim an attorney-client relationship. With one press of a button, those pesky parties will understand:

·        that they are not your client, that you will not represent their interests

·        that you will not protect their confidences,

·        that you will not avoid acting in ways contrary to their interests and

·        that they should seek the advice of an attorney soon as time limits might apply

For especially risky situations, consider SUPER DUTY-BE-GONE. In addition to the standard disclaimer, SUPER DUTY-BE-GONE:

·        secures a written waiver from the potential client or third party,

·        has a timed release formula that regularly reminds the third party or potential client of your role and

·        sounds an alarm whenever you act in a manner inconsistent with your disclaimer.

Don't be surprised by unexpected duties! Get DUTY-BE-GONE today!

(Warning: Do not attempt to use on actual clients. Void where prohibited by law...)

 

 

Discussion of Red Flag Clients and Questions to Identify them:

 

•         The client that can’t pay – Discuss fees and costs

•         The client that has dramatically unrealistic expectations – Give them the options and see if that’s enough

•         Liars – Trust your gut, do a background check

•         Multiple representation –”have you ever talked to another attorney about this”

 

4. True or False?  “A lawyer may be required to withdraw from employment, even if the client and the lawyer both want to continue the relationship and there is no conflict of interest”

 

True – any of the situations in Rule 1.16(a) are mandatory withdrawals (attorney would violate a rule, attorney is incapacitated, attorney is fired).

 

5. True or False? “A client has a right to discharge a lawyer at any time, with or without cause.”

False -  While courts regularly make this statement, it appears in cases in which the attorney has attempted to limit the client’s right to fire the attorney.  However, a court may require an attorney to continue to represent a client even if the client doesn’t want that attorney to continue. 

 

6. You are representing a client under circumstances in which withdrawal is permitted but not required. You wish to withdraw. Identify three steps you will take to avoid discipline in withdrawing from this case.

 

[There are two categories of permissive withdrawal – when withdrawal will not cause a material adverse effect on a client OR when one of the conditions of 1.16(b) is met even if withdrawal will cause a material adverse effect on a client]

 

Get court permission if you have entered an appearance

Give reasonable notice to client

Give time to secure other counsel

Return documents and refund unearned fees

Take any other reasonable steps to reduce prejudice to the client from the withdrawal (e.g. assist in transfer of files, complete time-sensitive steps, secure continuances, etc)

 

7.  You are representing an individual who can no longer afford your representation.  Identify the three circumstances in which the court would not allow you to withdraw despite the client’s failure to pay.

 

·        Withdrawal would cause significant prejudice to the client and that prejudice outweighs the financial harm to you

·        You could have prevented it (you knew the client would be unlikely to be able to pay but agreed to represent them anyway)

·        It’s too late, baby, now. (you waited too long into the process and withdrawal would now impose significant costs on the court as well as the client)

 

 

8.  Under which of the following circumstances must you seek to withdraw from a representation?

•         You reasonably believe the client is engaged in criminal or fraudulent conduct relating to your services

•         Your services have been used to perpetuate a fraud or crime

•         The client insists of pursuing an objective you consider repugnant or imprudent

 

The first situation is the only one in which you are likely required to withdraw.  You must seek to withdraw if you will be assisting the client in a crime or fraud. The withdrawal is mandatory even if it will have a material adverse effect on the client's interests. Model Rule 1.16(a)(1) (see also Model Rule 1.2(d))

 

In the second situation, if your services have been used to perpetrate a crime or fraud but you did not and will not continue to knowingly assist, you may but need not withdraw.  However, this would be an unusual situation. Ordinarily, if a client is using an attorney's services to perpetrate a fraud, the attorney will be obliged to withdraw because the continuing representation is likely to assist in that fraud by giving the appearance of validity to the underlying transaction.

See Comment 10 to Rule 1.2  (note that this comment is not contained in the Missouri rules)

 

The third situation is actually the language of the old rule – it is now covered by 1.16(b)(4), which you can see raises the stakes for permissive withdrawal.  The client must insist on action not just an objective and the lawyer must consider the action repugnant or have a fundamental disagreement.  A client who merely wants to do something dumb (has an “imprudent objective”) is not reason enough to withdraw when that withdrawal would have a material adverse effect on the client (1.16(b)(1)).

 

SUMMARY EXAMPLES

Must Withdraw

Client has fired you

You have discovered a conflict of interest between two of your clients       

 

May Withdraw even if client is hurt

Client has used your services to commit fraud

Client's objectives are repugnant

Client is continuing to use your past services to commit fraud

 

May withdraw but only if client isn't hurt

More lucrative options exist for your time        

 

9.  If you have been appointed to represent a client, how do you withdraw?  What standards apply?

 

Problem:

 

IN THE CIRCUIT COURT OF JACKSON COUNTY

FAMILY COURT DIVISION

STATE OF MISSOURI

 

In Re the Interest of _____________:,

(Date of Birth).

Petition No.:

Life No.:

                MOTION TO WITHDRAW AS ATTORNEY OF RECORD

 

                COMES NOW [Attorney] and hearby request leave to withdraw as attorneys for Defendant. As grounds therefore, Movants state as follows:

 

  1. Movant was appointed as attorneys of record for juvenile in this action.
  2. Further, Movant request leave to withdraw as attorneys of record for juvenile  because representation of the client is likely to result in the violation of the Rules of Professional Conduct.The firm with whom attorney is associated has no attorneys with any juvenile court  experience. Thus, Movant cannot handle the matter competently and representation would result in the violation of Missouri Rule of Professional Conduct 4-1.1

 

  1. Movant requests leave to withdraw as attorney of record for juvenile because representation of the client is likely to result in an unreasonable financial burden on Attorney in accordance with Missouri Rule of Professional Conduct 4-6.2. Movant anticipates the appointment will take at least 120 hours if it does not settle, and more hours if the firm is not forced to hire an attorney experienced in the field. The time and money is unduly burdensome on [Attorney] and his law firm.

 

  1. Further, Movant requests leave to withdraw as attorneys of record for juvenile because representation of the client is likely to result in violation of the juvenile’s constitutional right to a fair trial with an opportunity to be provided with adequate legal representation. Neither [Attorney] nor any attorneys within his firm have any juvenile defense experience as aforementioned, and are therefore inadequate to provide the juvenile with his Due Process rights. In re Gault, 387 U.S. 1 (1967).

 

  1. Movants has advised juvenile of his intention to withdraw as his/her attorneys by letter dated September 9, 2009, a copy of which is attached hereto and incorporated herein by reference.

 

  1. This cause is not presently set for trial or hearing.

 

 [Attorney], Bar Number

Attorney for Juvenile

1234 Oak Street

Kansas City, Missouri 64114

(816) 555-1234

A copy of the foregoing served by

mailing same, postage prepaid,

this 9th day of September, 2009, to:

 

 

 

Sixteenth Judicial Circuit Court Rule 21.6.1

MISSOURI COURT RULES

RULES OF THE CIRCUIT COURT OF JACKSON COUNTY [SIXTEENTH JUDICIAL CIRCUIT]

[Jackson County]

GENERAL RULES

RULE 21. ATTORNEYS

RULE 21.6 APPOINTMENT OF ATTORNEYS

RULE 21.6.1 APPOINTMENT OF COUNSEL IN JUVENILE COURT

PROCEEDINGS-- PROCEDURE--TERMINATION--FEES

 

APPOINTMENT:

 

1. Whenever a juvenile is indigent (or the parent or custodian is unable or unwilling to obtain counsel) and representation by counsel is required by law or Supreme Court rule, the Court will appoint an attorney to represent the juvenile. In the event that the parent or parents are not indigent the Court may assess costs against such parent(s) for attorney's fees.

 

2. Whenever a parent or custodian is indigent and representation is required by law or Supreme Court rule, the Court will appoint an attorney to represent the parent or custodian.

 

3. The Court shall, in its discretion, appoint the Public Defender for the Sixteenth Judicial Circuit to represent indigent juveniles in delinquency proceedings and may appoint other counsel to represent such juveniles. The Court, in its discretion, shall appoint the Office of Guardian ad Litem, the attorneys for the CASA Project, or other appropriate counsel as guardian ad litem for children in abuse/neglect actions.

 

4. All counsel appointed pursuant to this rule, other than the Office of Public Defender, the Office of Guardian ad Litem and the CASA Project, shall be appointed from a current alphabetical list of attorneys registered with the Missouri Supreme Court in Category I, II, or III as defined in Supreme Court Rule 6.01(j) and whose office is located in Jackson County, Missouri or who reside within Jackson County, Missouri.

 

5. An attorney shall not be relieved of appointment because: a. The attorney lacks familiarity with or experience in Juvenile Court proceedings; b. The attorney is employed by or serves as house counsel, corporate counsel, or a judicial law clerk; c. The attorney is employed by or serves a unit of city, county, state or federal government or any subdivision thereof (except sitting judges, commissioners, full time prosecutors and assistant prosecutors, and attorneys employed by not-for-profit legal aid organizations or the CASA Project of Jackson County, Missouri).

 

6. The Court may allow the appointed attorney to provide, at the attorney's expense, an acceptable alternate attorney to handle the appointment.

 

7. The grounds for withdrawal, relief from or termination of appointment are:

 

a. The attorney has served on two or more separate cases pursuant to an appointment under this rule within the current calendar year;

 

b. The attorney is 70 years of age or older or is retired from practice and in the opinion of the court the appointment would impose an undue hardship on the attorney;

 

c. The attorney does not practice law because of ill health;

 

d. A conflict of interest exists that precludes the attorney from serving in that particular case;

 

e. The party whom the attorney was appointed to represent has ceased to be indigent;

 

f. The attorney has ceased the practice of law and has changed his/her/license status to inactive and is no longer licensed in Category I, II, or III of Supreme Court Rule 6.01(j) or the attorney is no longer authorized by the Missouri Supreme Court to practice law under Rule 6.

 

 g. Electing "inactive" status on the Missouri Minimum Continuing Legal Education-Attorney Annual Report of Compliance does not establish a basis for the termination of any appointment to represent an indigent party. Verification that the attorney is not authorized to practice law in the State of Missouri by the Missouri Supreme Court is required.

 

TERMINATION OF APPOINTMENT--PROCEDURE--HEARING:

 

1. Termination of the appointment shall occur only by court order or by operation of court rule, statute or judicial decision.

 

 2. Application for leave to withdraw or to be relieved of the appointment shall be by motion. Such motion shall be in writing, signed by the attorney and verified and shall set forth the specific grounds for the relief sought. Such motion will not be considered unless it is shown:

 

a. That the attorney has provided the party whom that attorney was appointed to represent actual notice of the application or has made diligent efforts to provide such notice;

 

b. The party whom that attorney was appointed to represent has been afforded adequate time to respond to the application and to request appointment of another attorney;

 

c. The court may require a hearing on the motion. d. If the attorney files a motion for leave to withdraw because the attorney is no longer authorized by the Missouri Supreme Court to practice law in the State of Missouri, the attorney must attach as an exhibit proof from the Missouri Supreme Court that the attorney is no longer authorized to practice law.

 

ATTORNEY'S FEES--EXPENSES:

 

At the conclusion of the proceeding, or at any other time, if appropriate, counsel may by written motion request the Court to assess a reasonable attorney's fee and any reasonable and necessary expenses as costs. In the discretion of the Court, the Court may adjudge such costs as provided by law.

 

 [Adopted eff. prior to May 14, 1993. Amended Nov. 17, 2000, eff. Nov. 20, 2000; Jan. 17, 2003, eff. March 12, 2003.]

 

Sixteenth Judicial Circuit Court Rule 21.6.1 MO R 16 CIR Rule 21.6.1