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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Alabama Legal Ethics

1.16 Rule 1.16 Declining or Terminating Representation

1.16:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 1.16
  • Background References: ABA Model Rule 1.16, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

1.16:101   Model Rule Comparison

There are no differences between ARPC Rule 1.16 and the model rule.

1.16:102   Model Code Comparison

Inapplicable.

1.16:200 Mandatory Withdrawal

  • Primary Alabama References: AL Rule 1.16(a)
  • Background References: ABA Model Rule 1.16(a), Other Jurisdictions
  • Commentary: ABA/BNA § 31:1001, ALI-LGL § 32, Wolfram § 9.54
  • Alabama Commentary:

ARPC Rule 1.16(a) requires a lawyer to decline or withdraw from a client representation if (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. A lawyer is not obligated to withdraw from representation merely because a client suggests conduct that may violate a Rule of Professional Conduct. When a tribunal has appointed the lawyer to the representation the tribunal ordinarily should approve the withdrawal.

1.16:210   Discharge by Client

A client has the right to discharge a lawyer at any time with or without cause. The lawyer must withdraw if discharged by the client. Although the lawyer may be discharged by the client, the client is still liable for services rendered until the date of discharge. With respect to a contingency fee agreement, the lawyer may recover in quantum merit unless the contingency fee agreement controls by a specific contractual term.

1.16:220   Incapacity of Lawyer

A lawyer must withdraw if the lawyer's physical or mental condition impairs his ability to represent the client.

1.16:230   Withdrawal to Avoid Unlawful Conduct

A lawyer must withdraw from representation of a client if the client demands that the lawyer engage in conduct that violates a Rule of Professional Conduct or other law. A lawyer is not obligated to withdraw from representation merely because a client suggests conduct that may violate a Rule of Professional Conduct. In the event Court approval of the withdrawal is required and explaining this situation would violate client confidentiality, a statement by the lawyer that professional considerations require such withdrawal should be sufficient explanation.

1.16:240   Legal Action for the Purpose of Harassing or Maliciously Injuring Any Person

1.16:300 Permissive Withdrawal

  • Primary Alabama References: AL Rule 1.16(b)
  • Background References: ABA Model Rule 1.16(b), Other Jurisdictions
  • Commentary: ABA/BNA § 31:1101, ALI-LGL § 32, Wolfram § 9.5.3
  • Alabama Commentary:

ARPC Rule 1.16 states that a lawyer may withdraw from representing a client if he can do so without "material adverse effect on the client's interest or in certain other enumerated situations." Permissive withdrawal requires consent of the court. RO-90-93.

1.16:310   Withdrawal to Undertake Adverse Representation

A lawyer may not normally withdraw from the representation of one client in order to undertake adverse representation to that client. However, a lawyer may be able to withdraw from representation of one client and retain representation of another client so long as the lawyer did not help to create the original conflict of interest. <u>Ex Parte AmSouth Bank</u>, 589 So.2d 715, 722 (Ala. 1991). In this case, both a bank and a corporation were clients of a firm. A conflict of interest arose upon the bank suing the corporation. The Court found that the lawyers played no role in creating the conflict of interest and could continue to represent one of the clients as withdrawal would have a material adverse effect on that client.

1.16:320   Circumstances Justifying Discretionary Withdrawal

A lawyer may withdraw if doing so can be done without material adverse effect on the client's interest. A lawyer is justified to withdraw from representation when the client, in the past, misused the lawyer's services, even if withdrawal would materially prejudice the client and when the client refuses to abide by the terms of an agreement relating to the representation such as concerns over fees, court costs, or objectives of the representation. A lawyer may withdraw due to a client's misconduct, and refusal to heed the lawyer's advice. RO-92-04.

1.16:400 Order by Tribunal to Continue Representation

  • Primary Alabama References: AL Rule 1.16(c)
  • Background References: ABA Model Rule 1.16(c), Other Jurisdictions
  • Commentary: ABA/BNA § 31:1101, ALI-LGL § 32, Wolfram § 9.5.1
  • Alabama Commentary:

A lawyer must continue representation when a tribunal so orders notwithstanding good cause for a withdrawal from representation. In Ethics Opinion RO-90-93, the General Counsel advise the lawyer that he had no ground to continue to seek withdrawal from representing a client after a court found the grounds for such permissive withdrawal were insufficient.

1.16:500 Mitigating Harm to Client Upon Withdrawal

  • Primary Alabama References: AL Rule 1.16(d)
  • Background References: ABA Model Rule 1.16(d), Other Jurisdictions
  • Commentary: ABA/BNA § 31:1201, ALI-LGL §§ 32, 33, Wolfram § 9.5.1
  • Alabama Commentary:

A lawyer is required to take reasonably practical steps to protect a client's interests after withdrawal from representation. Such steps include giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fees that has not been earned.

1.16:600 Fees on Termination

  • Primary Alabama References: AL Rule 1.16(d)
  • Background References: ABA Model Rule 1.16(d), Other Jurisdictions
  • Commentary: ABA/BNA §§ 31:701, 31:1001, 31:1101 , ALI-LGL §§ 31, 40, Wolfram § 9.5
  • Alabama Commentary:

See Section 1.5:230 above.

1.16:610   Termination of Lawyer's Authority [see 1.2:270]

See Section 1.2:270.