Know when to withdraw

Attorneys can often tell when something does not feel right with their representation. It may be that a client stops or delays paying bills, or sometimes there may be reason to believe that the client is not being honest with the attorney.

If an attorney does not take steps to assess the situation and consider withdrawal, it can lead to future misunderstandings with the client, including, potentially, a legal malpractice claim. However, by recognizing the signs early on and knowing when and how to withdraw from the representation, attorneys can try to get out of a bad situation before it potentially turns into something worse.

While clients typically can fire their attorney at any time and for any reason, attorneys do not always have the same luxury. For that reason, in deciding whether to withdraw, the first consideration is can the attorney withdraw under the applicable rules. If so, the next question is should the attorney withdraw based on the circumstances.

Mandatory Withdrawal

In some situations, the decision is out of the attorney's hands. Rule 3-700 of the California Rules of Professional Conduct specifies those circumstances in which withdrawal from a representation is mandatory, including where: (1) an attorney knows that the client is advancing a claim in a lawsuit without probable cause or for the purpose of harassing or maliciously injuring any person; (2) the attorney knows or should know that the representation will result in violation of the Rules of Professional Conduct or the California State Bar Act; or (3) the attorney's mental or physical condition renders it unreasonably difficult to carry out the representation effectively.

One circumstance that might require withdrawal in some circumstances is when an irreconcilable conflict arises during the representation of multiple clients whose interests were originally aligned. If the interests of those parties later conflict as a result of changing circumstances, the lawyer may be unable to continue the representation of both parties without violating the Rules of Professional Conduct.

Because withdrawal in the three listed situations is mandatory, attorneys can carefully analyze the circumstances when one of the situations arises. The determination that withdrawal is mandatory is not an easy one, especially when it involves the attorney's own mental or physical condition.

Permissive Withdrawal

Rule 3-700 also lists circumstances in which an attorney may withdraw. This includes a wide range of scenarios, including when a client fails to pay agreed-upon fees or when the client's conduct "renders it unreasonably difficult" for the attorney to carry out the representation.

However, for both mandatory and permissive withdrawal, Rule 3-700 provides that an attorney shall not withdraw unless she or he has taken "reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client," which generally includes giving due notice to the client of the withdrawal. Thus, the inquiry is typically not as simple as determining whether one of the circumstances for mandatory or permissive withdrawal is present and then withdrawing from the representation.

When to Withdraw

Assuming that withdrawal can be accomplished without causing "reasonable foreseeable prejudice" to the client, here are a few common situations when attorneys may choose to remove themselves from a potentially risky situation.

1. The client stops paying the bills

When clients stop paying, the difficult solution for many (but often helpful in the long run) is to figure out why. Indeed, a client's failure or refusal to pay its bills could be a sign that it is unhappy with the services provided by the lawyer. This is especially true if coupled with actual complaints or other noticeable changes in the relationship between the attorney and the client.

On the other hand, a client's inability to pay can be just as worrisome. Law practices of course cannot survive by providing services to client who can never pay. The bottom line is that when a client stops or refuses to pay, attorneys may want to consider the option of withdrawal long before the representation reaches the crisis point.

2. The dishonest client

Trust is a foundational element of an effective attorney-client relationship. Not only must the client trust the attorney's ability and willingness to represent its interests, the attorney must be able to trust that the information provided by the client is accurate and truthful. Attorneys often rely on the information provided by clients in representing their interests in front of judges, other lawyers, or other third parties. Relying on false information in those contexts -- even through no fault of the attorney -- may not only harm the client's interests, it can also permanently damage the attorney's reputation. Accordingly, if an attorney loses trust in the client, it may be a sign that the attorney should consider whether to withdraw from the representation.

3. Changes in the relationship

Sometimes, the best reason to consider withdrawal is intangible. An attorney may sense that something is just not right. For example, if the client seeks a second opinion in connection with the representation without telling the attorney, it could be a sign that something is not right in the relationship.

There are other indicators of problems in the making. These include complaints, especially if they are in writing, about attorney services or billings. Initial grumblings about the fees incurred or the services provided by the attorney can get worse during the course of the representation if unaddressed.

The key in these situations is for attorneys to recognize the warning signs, ask the right questions, and follow their instincts. Rather than let a bad situation get worse, the best answer for some may be to end the representation.