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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


California Legal Ethics

1.16   Rule 1.16 Declining or Terminating Representation

1.16:100   Comparative Analysis of CA Rule

¥ Primary California References: CRPC 3-700, B&PC ¤ 6068
¥ Background References: ABA Model Rule 1.16, Other Jurisdictions
¥ Commentary:

1.16:101      Model Rule Comparison

Like MR 1.16(a)(1), CRPC 3-700(B) requires a lawyer to withdraw when a lawyer's representation will result in a violation of rules of professional conduct. Although CRPC 3-700 does not expressly refer to representation which will result in a violation of law, the California rules require mandatory withdrawal in such situations by reference to the CRPC and the State Bar Act. In addition, CRPC 3-700(B)(1) and CRPC 3-700(B)(2) require mandatory withdrawal where the lawyer "knows or should know" that his or her client is conducting litigation or asserting a position or defense for improper purposes.

The California rule regarding mandatory withdrawal for disability of the lawyer is slightly different from the Model Rule. In contrast to MR 1.16(a)(2) which prescribes mandatory withdrawal when the physical or mental condition of the lawyer "materially impairs" the lawyer's ability to represent the client, CRPC 3-700(B)(2) requires mandatory withdrawal if the lawyer's physical or mental condition would make it "unreasonably difficult" to carry out employment effectively.

CRPC 3-700(A)(1) also makes it clear that a lawyer may not withdraw from representation of a matter before a tribunal without the permission of the tribunal. In contrast, MR 1.16(c) seems to suggest on its face that a lawyer need only continue representation "when ordered to do so by a tribunal. . . ."

Unlike the Model Rules, the California rule allows withdrawal on a permissive basis for the same grounds that require mandatory withdrawal of representation. See CRPC 3-700(C)(1)(a)-(d); CRPC 3-700(C)(2). In addition, California establishes essentially the same standards for permissive withdrawal as MR 1.16(d) with a few changes. For example, in contrast to MR 1.16(b)(4), CRPC 3-700(C)(1)(f) does not expressly require the lawyer to provide a reasonable warning to the client before the lawyer may withdraw for a breach of a fee or expense agreement by the client. On the other hand, CRPC 3-700(A)(2) requires that due notice always be given to a client before withdrawing from representation. Although CRPC 3-700(C)(1)(b) does not expressly refer to fraudulent activity by the client, permissive withdrawal in such circumstances would appear to be proper due to the reference to violations of the CRPC or the State Bar Act.

Both MR 1.16 and CRPC 3-700 require a lawyer to return all of the client's papers and property to the client upon termination of representation and require the return of the unearned part of any fee advance. CRPC 3-700(D)(2) differs from MR 1.16 in that it clarifies that the requirement to return an unearned fee does not apply "to a true retainer fee which is paid solely for the purpose of ensuring the availability of the member for the matter." In addition, CRPC 3-700 expressly defines the phrase "client's papers and property" by listing examples of the materials that must be returned to the client.

1.16:102      Model Code Comparison

California's Rules for mandatory and permissive withdrawal differ from DR 2-110 primarily by placing greater restrictions upon withdrawal. The three specific circumstances set forth under CRPC 3-700(B) for mandatory withdrawal are substantially the same as those established by DR 2-110(B). CRPC 3-700(B)(1) differs slightly from DR 2-110(B)(1) in that California has added a reference to bringing suit "without probable cause" as an additional criterion or qualifier to the DR's requirement that a legal action is brought for purposes of harassment or malicious injury. CRPC 3-700(B)(2) also differs from DR 2-110(B)(2) by mandating withdrawal if continued representation would "result in a violation of these rules or of the State Bar Act." In contrast, DR 2-110(B)(2) requires a lawyer to withdraw if continued employment would result in a violation of a Disciplinary Rule. The California withdrawal requirement thus appears broader than the Model Code in this regard. Another difference between the DR and the CRPC is that CRPC 3-700 does not expressly require withdrawal when a lawyer is discharged by his or her client, while DR 2-110(B)(4) contains this requirement.

With respect to permissive withdrawal, CRPC 3-700(C) is essentially identical to DR 2-110(C). The only substantive difference is that CRPC 3-700(C)(1)(f) does not require that a client "deliberately" breach an agreement regarding fees or expenses, while DR 2-110(C)(1)(f) includes this qualifier. With this sole exception, California's criteria for permissive withdrawal are substantively the same as the DR.

1.16:200   Mandatory Withdrawal

¥ Primary California References: CRPC 3-700
¥ Background References: ABA Model Rule 1.16(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:1001, ALI-LGL ¤ 44, Wolfram ¤ 9.54

CRPC 3-700(B) sets forth three criteria requiring mandatory withdrawal by a California lawyer. The first criterion occurs where "the member knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring a person." CRPC 3-700(B)(1). The second situation requiring mandatory withdrawal occurs where "the member knows or should know that continued employment will result in violation of these rules or of the State Bar Act." CRPC 3-700(B)(2). It should be noted that both of these subsections require mandatory withdrawal where the lawyer knows or should know the prohibited consequences. The final basis for mandatory withdrawal under CRPC 3-700(B)(3) is where the physical or mental condition of the lawyer "renders it unreasonably difficult to carry out the employment effectively."

The following comments are taken from Karpman & Margolis pgs. 67-68 with certain conforming changes:

A lawyer has a duty under this rule to withdraw if the client insists on presenting a false claim; however, the lawyer must advise the client in writing of the intent to withdraw, advise the client to seek independent counsel, and otherwise advise the client of the needed steps to protect the clientÕs rights. In re Hickey (1990) 50 Cal.3d 571, 580, 268 Cal.Rptr. 170, 788 P.2d 684.

CounselÕs doubts regarding a clientÕs credibility and the legitimacy of the clientÕs case are proper grounds for seeking withdrawal. Davis v. State Bar (1983) 33 Cal.3d 231, 238, 188 Cal.Rptr. 441, 655 P.2d 1276.

Counsel should not seek nonconsensual withdrawal if he determines that clientÕs case lacks merit; he should give the client an opportunity to obtain other counsel or to file a consensual withdrawal in order to avoid inference of lack of merit. Kirsch v. Duryea (1978) 21 Cal.3d 303, 146 Cal.Rptr. 218, 578 P.2d 935.

See People v. Gadson (2nd Dist. 1993) 19 Cal.App.4th 1700, 24 Cal.Rptr. 2d 219, in which a criminal defendant insisted on presenting perjured testimony of two witnesses as well as his own; his lawyer resolved the ethical dilemma between his clientÕs right to call witnesses over his lawyerÕs object, and his duty, as an officer of the court, not to present perjured testimony, by stepping aside and allowing the witnesses to testify in a narrative form without his active participation, and without seeking complete withdrawal from representation.

See also Cosenza v. Kramer (1st Dist. 1984) 152 Cal.App.3d 1100, 1103, 200 Cal.Rptr. 18 (client insists on pursuing frivolous appeal); Metzger v. Silverman (Cal. Super. 1976) 62 Cal.App.3d Supp 30, 133 Cal.Rptr. 355 (client insists on bring action in wrong venue and solely for purposes of harassment and malicious injury).

A lawyer has a duty to withdraw if his continued representation will violate his professional responsibility. Vangsness v. Superior Court (4th Dist. 1984) 159 Cal.App.3d 1087, 1090-1091, 206 Cal.Rptr. 45.

1.16:210      Discharge by Client

A client has the right to fire a lawyer at any time, with or without cause, subject to court approval in certain litigation matters. Fracasse v. Brent (1972) 6 Cal.3d 784, 100 Cal.Rptr. 385, 494 P.2d 9. A limited exception recognized by the California courts is where the lawyer has an interest, or a power coupled with an interest, in the subject matter of the litigation. Todd v. Superior Court (1919) 181 Cal. 406, 184 P. 684; Atchison v. Hulse (4th Dist. 1930) 107 Cal.App. 640, 290 P. 916; Telander v. Telander (2nd Dist. 1943) 60 Cal.App.2d 207, 140 P.2d 204. The interest of a lawyer in receiving hourly fees or a contingent fee, however, is not considered a sufficient interest to deny a client the right to discharge the lawyer. Davis v. Rudolph (1st Dist. 1947) 80 Cal.App.2d 397, 181 P.2d 765; Hoult v. Beam (3rd Dist. 1960) 178 Cal.App.2d 736, 3 Cal.Rptr. 191; Isrin v. Superior Court (1965) 63 Cal.2d 153, 45 Cal.Rptr. 320, 403 P.2d 728.

While a client has a right to discharge his or her counsel, such discharge may have economic consequences. For example, the California Supreme Court has allowed recovery of the contractual fee by a discharged lawyer as a measure of quantum meruit recovery. Fracasse v. Brent (1972) 6 Cal.3d 784, 100 Cal.Rptr. 385, 494 P.2d 9. In addition, an employer is not automatically protected from an action for wrongful termination where the discharged lawyer serves as in-house counsel. Although a corporation can discharge in-house counsel, it cannot do so without honoring antecedent contractual obligations. General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 32 Cal.Rptr.2d 1, 876 P.2d 487. A client may also incur liability if it encourages a law firm to discharge a lawyer for discriminatory reasons such as age. Plessinger v. Castleman & Haskell (N.D. Cal. 1993) 838 F.Supp. 448. Similarly, the California courts have allowed a wrongful termination suit by a discharged government lawyer against his former public employer where the employer attempted to fire the county lawyer for union activity. Santa Clara County Counsels Attorneys Assn. v. Woodside (1994) 7 Cal.4th 525, 28 Cal.Rptr.2d 617, 869 P.2d 1142.

A defendant in a criminal prosecution also has a right to discharge his or her lawyer except where the discharge of counsel immediately before trial would result in an unreasonable delay of the trial. People v. Garabito (4th Dist. 1966) 244 Cal.App.2d 549, 53 Cal.Rptr. 152. The United States Supreme Court, however, held in Faretta v. California (1975) 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525, that a criminal defendant has a constitutional right to self-representation if he or she desires.

1.16:220      Incapacity of Lawyer

A California lawyer must withdraw from representation pursuant to CRPC 3-700(B)(3) where the lawyer's "mental or physical condition renders it unreasonably difficult to carry out the employment effectively." The court also has the power to remove the defendant's lawyer in a criminal action where the lawyer exhibits "objective evidence" of physical incapacity to proceed such as illness, intoxication, or a nervous breakdown, but only after reasonable alternatives such as continuance have been exhausted. Smith v. Superior Court (1968) 68 Cal.2d 547, 559, 68 Cal.Rptr. 1, 440 P.2d 65. There are, however, few reported California cases regarding mandatory withdrawal for physical or mental disability.

1.16:230      Withdrawal to Avoid Unlawful Conduct

A lawyer must withdraw when he "knows or should know that continued employment will result in a violation of these rules or of the State Bar Act." CRPC 3-700(B)(2). A lawyer may withdraw where the client "seeks to pursue an illegal course of conduct." CRPC 3-700(C)(1)(b). Unlike the MR, there is no rule or provision permitting a lawyer to withdraw when the lawyer discovers after-the-fact that a client has used the lawyer's services to perpetrate a crime or fraud. cf. MR 1.16(b)(2). Once a trial has begun in a criminal case, moreover, a court has the power to deny withdrawal by a lawyer even where the client said that he would commit perjury. People v. Brown (3rd Dist. 1988) 203 Cal.App.3d 1335, 250 Cal.Rptr. 762. In that case, the court did not permit withdrawal by counsel since this would allow the defendant to halt trial by telling counsel at the eleventh hour that the defendant intends to commit perjury. Where the court denies withdrawal, the lawyer must proceed or risk being held in contempt even if the lawyer believes that by proceeding he or she will violate some other ethical rule. People v. Guzman (1988) 45 Cal.3d 915, 248 Cal.Rptr. 467, 755 P.2d 917.

1.16:300   Permissive Withdrawal

¥ Primary California References: CRPC 3-700
¥ Background References: ABA Model Rule 1.16(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:1101, ALI-LGL ¤ 44, Wolfram ¤ 9.5.3

CRPC 3-700(B) and Civ. Proc. Code ¤ 284 govern the permissive withdrawal of counsel in both civil and criminal matters. People v. Prince (1st Dist. 1968) 268 Cal.App.2d 398, 404, 74 Cal.Rptr. 197; People v. Bouchard (1957) 49 Cal.2d 438, 317 P.2d 971. CRPC 3-700(C) provides that a lawyer "may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request for withdrawal is because" of one of the criteria listed in CRPC 3-700(C) or is otherwise covered by mandatory withdrawal under CRPC 3-700(B). In addition, CRPC 3-700(A) prohibits a lawyer from withdrawing from a matter before a tribunal without the permission of that tribunal. Moreover, a lawyer may not withdraw without taking "reasonable steps to avoid reasonable foreseeable prejudice to the right of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with CRPC 3-700(D), and complying with applicable laws and rules."

The following comments are taken from Karpman & Margolis pgs. 68-69 with certain conforming changes:

Permissive Withdrawal, CRPC 3-700(C)

Where a criminal defendant intends to commit perjury, counsel must first try to dissuade the client, then seek to be relieved as counsel if client insists on pursuing illegal course of conduct. The court has discretion to deny counselÕs motion to withdraw. People v. Brown (3rd Dist. 1988) 203 Cal.App.3d 1335, 250 Cal.Rptr. 762.

Removal of counsel was necessitated by a serious conflict of interest manifestly affecting performance or the duty of loyalty to the client. Leversen v. Superior Court of Orange County (1983) 34 Cal.3d 530, 194 Cal.Rptr. 448, 668 P.2d 755; People v. McKenzie (1983) 34 Cal.3d 616, 630, 194 Cal.Rptr. 462, 668 P.2d 769.

Client insists on bringing claim or defense not warranted under existing law. Davis v. State Bar (1983) 33 Cal.3d 231, 238, 188 Cal.Rptr. 441, 655 P.2d 1276; Metzger v. Silverman (Cal. Super. 1976) 62 Cal.App.3d Supp. 30, 39, 133 Cal.Rptr. 355.

A lawyer may not act as advocate for client before a jury who will hear testimony from the lawyer, unless the provisions of CRPC 5-210 are complied with. Absent such compliance, disqualification may be called for. Comden v. Superior Court (1978) 20 Cal.3d 906, 145 Cal.Rptr. 9, 576 P.2d 971; Lyle v. Superior Court (4th Dist. 1981) 122 Cal.App.3d 470, 175 Cal.Rptr. 918.

ClientÕs conduct makes it unreasonably difficult for lawyer to carry out his employment. Pearlmutter v. Alexander (Cal. Super. 1979) 97 Cal.App.3d Supp. 16, 20, 158 Cal.Rptr. 762 (clientÕs refusal to consummate agreed-upon settlement); compare, Estate of Falco (2nd Dist. 1987) 188 Cal.App.3d 1004, 233 Cal.Rptr. 807, holding that clientÕs refusal to settle cannot, in itself, constitute good cause for withdrawal for purposes of recovery of attorneyÕs fees in quantum meruit.

This rule, requiring a lawyer to be relieved as counsel if representation creates a situation in which it is unreasonably difficult for lawyer to carry out his or her employment effectively, or when a client insists on presenting an unwarranted claim or defense, is applicable to public defenders and others appointed by the court to act as advisors to criminal defendants in pro per. It was error for the trial court to hold a deputy public defender in contempt for refusing to act as an advisor when he was placed in an untenable ethical position. Chaleff v. Superior Court (2nd Dist. 1977) 69 Cal.App.3d 721, 724-725, 138 Cal.Rptr. 735.

Withdrawal may be sought for failure of client to pay attorney fees pursuant to a fee agreement. People v. Prince (1st Dist. 1968) 268 Cal.App.2d 398, 74 Cal.Rptr. 197. Mandell v. Superior Court (2nd Dist. 1977) 67 Cal.App.3d 1, 4, 136 Cal.Rptr. 354 (in criminal case; fee agreement extended to representation at preliminary hearing only.) However, withdrawal sought because of non-payment of fees must be timely and may be denied by court if it would prejudice clientÕs rights. People v. Turner (1st Dist. 1992) 7 Cal.App.4th 913, 9 Cal.Rptr. 2d 388 (criminal defendant sought unsuccessfully to substitute counsel on the day of trial; court cited significant disruption to proceedings if substitution, which would necessitate lengthy continuance of trial, allowed); Linn v. Superior Court (2nd Dist. 1926) 79 Cal.App.721, 725, 250 P. 880 (motion to withdraw heard day before trial; denied).

The lawyer for a guardian ad litem for a minor may not withdraw simply by filing substitution of counsel. The lawyer must first obtain court approval. Torres v. Friedman (2nd Dist. 1985) 169 Cal.App.3d 880, 887-888, 215 Cal.Rptr. 604.

If a criminal appeal would be totally frivolous, counsel must so advise the court and request permission to withdraw. However, an indigent defendant in federal case is constitutionally entitled to vigorous advocacy by counsel on appeal up to time of ruling on motion to be relieved. U.S. v. Griffy (9th Cir. 1990) 895 F.2d 561, 562-563.

1.16:310      Withdrawal to Undertake Adverse Representation

It is clear that a California lawyer may not withdraw from representation of a client in order to take up a case that involves representation adverse to the client. Truck Insurance Exchange v. Fireman's Fund Insurance Co. (1st Dist. 1992) 6 Cal.App.4th 1050, 8 Cal.Rptr.2d 228; Jeffrey v. Pounds (3rd Dist. 1977) 67 Cal.App.3d 6, 136 Cal.Rptr. 373. [See 1.9:200 Representation Contrary to Interest of Former Client- In General, supra]. However, where a conflict arises due to a merger or acquistion, the attorney may choose which client to terminate. Truck Insurance Exchange, supra.

1.16:320      Circumstances Justifying Discretionary Withdrawal

Withdrawal for client's illegal or repugnant course of conduct

CRPC 3-700(C)(1)(a) allows a lawyer to seek permissive withdrawal where the client "insists upon presenting" a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law." CRPC 3-700(C)(1)(b) and CRPC 3-700(C)(1)(c) allow withdrawal where the client "seeks to pursue an illegal course of conduct" or insists that the lawyer "pursue a course of conduct that is illegal or prohibited under these rules or the State Bar Act." For cases authorizing withdrawal for ethical reasons, see Chaleff v. Superior Court (2nd Dist. 1977) 69 Cal.App. 3d 721, 138 Cal.Rptr. 735 (lawyer believed client's claim not warranted under existing law); Estate of Falco (2nd Dist. 1987) 188 Cal.App. 3d 104, 233 Cal.Rptr. 807 (ethical obligations may justify withdrawal).

Withdrawal due to client obstruction and irreparable breakdown of lawyer-client relationship

In general, the refusal of a client to accept the lawyer's advice is not generally sufficient justification for permissive withdrawal. However, CRPC 3-700(C)(1)(d) allows withdrawal where the client's conduct "renders it unreasonably difficult for the member to carry out the employment effectively." For example, some California courts have permitted withdrawal where the client insists on holding out for a higher settlement offer or insists on going to trial. Pearlmutter v. Alexander (Cal. Super. 1979) 97 Cal.App. 3d Supp. 16, 158 Cal.Rptr. 762. On the other hand, other courts have held that the client has an absolute right to refuse to accept a settlement. As a consequence, the client's refusal to accept a settlement, standing alone, is not ground for withdrawal. Estate of Falco (2nd Dist. 1987) 188 Cal.App. 3d 104, 233 Cal.Rptr. 807; Vann v. Shilleh (2nd Dist. 1975) 54 Cal.App. 3d 192, 126 Cal.Rptr. 395.

Withdrawal for failure of client to pay lawyer

A California lawyer may withdraw if the client "breaches an agreement or obligation to the member as to expenses or fees." CRPC 3-700(C)(1)(f). Prior California law had required that the client's breach had to be "deliberate" or wilful. California courts have allowed lawyers in even criminal cases to withdraw where their client has breached a fee agreement, as long as the withdrawal is before trial has begun and will not unduly prejudice the defendant or adversely impair the administration of justice. See People v. Prince (1st Dist. 1968) 268 Cal.App.2d 398, 74 Cal.Rptr. 197.

Permissive withdrawal for lawyer's physical or mental disability

A California lawyer may seek to withdraw where "the member's mental or physical condition renders it difficult for the member to carry out the employment effectively." CRPC 3-700(C)(4). The few reported cases in this area make it clear that a lawyer may withdraw when a physical or mental condition impairs his or her ability to represent the client effectively. See, e.g., Walker v. State (1989) 49 Cal.3d 1107, 264 Cal.Rptr. 825, 783 P.2d 184 (pancreatitis); Frazer v. State Bar (1987) 43 Cal.3d 564, 238 Cal.Rptr. 54, 737 P.2d 1338 (agoraphobia).

Withdrawal for other good causes

A California lawyer may also seek to withdraw where "the member believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for a withdrawal." CRPC 3-700(C)(6). This catch-all provision is intended as a means of allowing withdrawal in situations which do not fit exactly within the other enumerated criteria, but still justify withdrawal by the lawyer. See, e.g., Kirsch v. Duryea (1978) 21 Cal.3d 303, 146 Cal.Rptr. 218, 578 P.2d 935 (court allowed counsel to withdraw when expert evidence led the lawyer to conclude that the client's personal injury suit was without merit).

The following comments on CRPC 3-700 are taken from Karpman & Margolis pages 67-71 with certain conforming changes:

The right of a lawyer to withdraw from employment is not absolute. It is governed by statutes, the California Rules of Court, case law, and this rule. A lawyer in a pending case may not abandon a client at will or for personal considerations; but must continue the representation until released by the client or the court. In no event may a lawyer withdraw without taking reasonable steps to protect the interests of the client. The duties imposed under this rule apply equally whether the lawyer is discharged by the client or voluntarily withdraws. Further, even absent the formation of an intention to withdraw as counsel, a lawyer who ceases to perform services must comply with the duty to take steps to avoid prejudice to the rights of his or her client.

A lawyer discharged by a client, with or without cause, retains the right to the reasonable value of his or her services. However, when the lawyer terminates the representation, he or she may forfeit the right to fees, depending on whether the withdrawal was for good cause.

Cases

Withdrawal Not Justified

A lawyer retained on contingent fee basis who withdraws on ground that the recovery would be too small to warrant further work on the case, was not entitled to assert lien for fees. Hensel v. Cohen (2nd Dist 1984) 155 Cal.App.3d 563, 564, 202 Cal.Rptr. 85.

Withdrawal was not justified because of clientÕs refusal to settle. Estate of Falco (2nd Dist. 1987) 188 Cal.App.3d 1004, 1018-1020, 233 Cal.Rptr. 807.

Withdrawal Justified

There is no basis in law or logic for a conclusion that a lawyer may never withdraw from a case except for cause. A lawyer violates his or her ethical mandate by abandoning a client, or by withdrawing at a critical point and thereby prejudicing the clientÕs case. It was not prejudicial to the client for a lawyer to withdraw after representing the client through summary judgment where the lawyer was prepared to file the notice of appeal and appropriate post judgment motions whether or not he continued as her lawyer. Ramirez v. Sturdevant (1st Dist. 1994) 21 Cal.App.4th 904, 26 Cal.Rptr. 2d 554.

When an unforeseen event, such as death or incapacity, renders complete performance of legal services impossible, the lawyer is entitled to quantum meruit fees. Cazares v. Saenz (4th Dist. 1989) 208 Cal.App.3d 279, 256 Cal.Rptr. 209, 216.

A lawyer is entitled to quantum meruit compensation even if disciplinary suspension or disbarment renders him incapable of performance. The reasonable value of services up to time of incapacity due to suspension or disbarment may be allowed. In the Matter of Kueker (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 583, 593; Hardy v. San Fernando Valley Chamber of Commerce (2nd Dist. 1950) 99 Cal.App.2d 572, 222 P.2d 314, 317; cf. Jeffry v. Pounds (3rd Dist. 1977) 67 Cal.App.3d 6, 136 Cal.Rptr. 373 (lawyer involved in conflict of interest allowed to receive fees up to time of the conflicting representation).

LawyerÕs duty to ÒpromptlyÓ refund an unearned fee was not violated, when the lawyer believed he was entitled to retain entire advance fee, and postponed any refund until such time as a small claims court determined a refund was required. In the Matter of Whitehead (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 354, 365.

If a lawyer faces competing demands regarding the funds used to pay an advance fee, from the client and from a third party to whom the lawyer owes a fiduciary relationship, the lawyer must decline to refund the unearned fee to the client and instead must retain the funds in trust until such time as the clientÕs entitlement to the funds is established. In the Matter of Respondent F (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 17, 27-28.

A disciplinary order for restitution of unearned fees commonly requires return of the entire amount of the fee, when only preliminary services were performed which did not result in benefit to the client. In the Matter of Harris (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 219, 231. Such restitution orders may also require payment of interest. Martin v. State Bar (1991) 52 Cal.3d 1055, 1064, 277 Cal.Rptr. 868, 804 P.2d 54.

References

B&PC ¤ 6180-6180.14 (Cessation of law practice due to attorneyÕs death, resignation, inactive status, suspension or disbarment); B&PC ¤ 6190-6190.6 (Jurisdiction of superior court over law practice of lawyer who has become incapacitated).

Civ. Proc. Code ¤ 284(1) (CourtÕs duty to accept consensual substitution of lawyer); Civ. Proc. Code ¤ 285.1 (Withdrawal in domestic relations cases after entry of final decree or judgment); Civ. Proc. Code ¤ 285.2 (Withdrawal by legal service agency lawyer when reduced public funding materially impairs ability to represent clientele); Civ. Proc. Code ¤ 286 (Protection of client in cases where lawyer dies, is removed or suspended from practice, or ceases to act as lawyer).

Fam. Code ¤ 8800(c) (Duty of lawyer to withdraw from multiple representation of prospective adoptive parents and natural parents in independent adoptions).

Pen. Code ¤ 987.1 (Criminal defense counsel at preliminary hearing must continue representation until arraignment unless relieved by Court or by substitution of other counsel, or for other cause).

Welf. & Inst. Code ¤ 634.6 (Withdrawal of counsel for minor in juvenile court proceedings).

Cal. Rule of Court 376 (Requirements of notice of motion to be relieved as counsel); Cal. Rule of Court 955 (AttorneyÕs duties to clients, opposing counsel and court upon cessation of practice due to suspension, disbarment, or resignation).

Ethics Opinions

C.O.P.R.A.C. Op. 1994-134 (Conflicting obligations to release the file where an attorney is discharged but the client or new lawyer will not execute a substitution; the original lawyer may have a duty of competence to retain the file until relieved as counsel depending upon the circumstances).

L.A. Op. 475 (Former client files (except intrinsically valuable documents) may be destroyed if a diligent effort and reasonable means to notify the clients to retrieve their file have failed and the clients have not objected nor responded after a sufficient period of time has passed).

L.A. Op. 476 (Performance obligations in conjunction with unpaid fees and a potential fee dispute).

C.O.P.R.A.C. Op. 1992-127 (Ethical duties of criminal defense counsel to cooperate with and provide information to successor counsel).

C.O.P.R.A.C. Op. 1989-111 (Ethical responsibilities of lawyer when client cannot be located).

C.O.P.R.A.C. Op. 1988-96 (Necessity to withdraw from multiple representation when clientsÕ interests become adverse).

C.O.P.R.A.C. Op. 1985-86 (Ethical requirements relating to contracts with clients when law firms dissolve or one or more lawyers withdraw).

C.O.P.R.A.C. Op. 1983-74 (LawyerÕs duty to seek withdrawal upon learning that client has committed perjury).

L.A. Op. 1982-407 and L.A. Op. 1976-362 (Withdrawal from all representation required before suing client for fee).

1.16:400   Order by Tribunal to Continue Representation

¥ Primary California References: CRPC 3-700
¥ Background References: ABA Model Rule 1.16(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:1101, ALI-LGL ¤ 44, Wolfram ¤ 9.5.1

The CRPC and Civ. Proc. Code ¤ 284 make it clear that a lawyer may not withdraw from representation in a matter before a tribunal without the approval of the tribunal or the consent of the client. CRPC 3-700(A)(1) expressly provides that where "permission for termination of employment is required by the rules of the tribunal, a member shall not withdraw from employment in a proceeding before that tribunal without its permission." Whether a request for withdrawal is granted or denied in a criminal case is within the sound discretion of the trial court, having in mind whether the withdrawal would cause injustice in the handling of the case. People v. Prince (1st Dist. 1968) 268 Cal.App.2d 398, 74 Cal.Rptr. 197.

In Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 78 Cal.Rptr.2d 494 the Court of Appeal refused to allow an attorney to withdraw from representation because the attorney would not provide the court with any facts to explain the withdrawal. The attorney cited his duty of confidentiality. The court set out guidelines for how much information an attorney should give and suggested proceeding in camera if appropriate.

If the court denies counsel's motion to withdraw, the lawyer must proceed or risk being held in contempt even if the lawyer believes that he will violate some other ethical rule by proceeding. People v. Guzman (1988) 45 Cal.3d 915, 248 Cal.Rptr.467, 755 P.2d 917. See also, People v. Brown (3rd Dist. 1988) 203 Cal.App.3d 1335, 250 Cal.Rptr. 762.

1.16:500   Mitigating Harm to Client Upon Withdrawal

¥ Primary California References:
¥ Background References: ABA Model Rule 1.16(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:1201, ALI-LGL ¤¤ 44, 45, Wolfram ¤ 9.5.1

Duties to client on termination

The general rule provided by CRPC 3-700(A)(2) is that a California lawyer "shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, and allowing time for employment of other counsel. . . ." In addition, a California lawyer must "promptly release to the client, at the request of the client, all the client papers and property." CRPC 3-700(D)(1). Although a lawyer is required to take reasonable steps to avoid prejudice to the client's interests, normally a lawyer would not be required to provide additional professional services once a successor counsel has been retained absent special circumstances. In addition, the provision requiring return of client papers and property is meant to clarify that the former counsel has a duty to provide the client's files to the new counsel. Academy of California Optometrists, Inc. v. Superior Court (3rd Dist. 1975) 51 Cal.App.3d 999, 124 Cal.Rptr. 668; Weiss v. Marcus (2nd Dist. 1975) 51 Cal.App.3d 500, 124 Cal.Rptr. 297. These provisions do not prohibit a lawyer from making a copy of the client's files at the lawyer's own expense, or prohibit the lawyer from filing a claim to recover the lawyer's expense in any subsequent legal proceeding.

The California rule, however, differs from the MR and the DR, and states that a lawyer must return the papers and property of the client "at the request of the client." CRPC 3-700(D)(1). The California rule also defines papers and property of the client to include "correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client's representation, whether the client has paid for them or not." The case law also makes clear that a lawyer's work product belongs to the client whether or not the lawyer has been paid for his services. Kallen v. DeLug (2nd Dist. 1984) 157 Cal.App.3d 940, 203 Cal.Rptr. 879, 885.

Protecting client's interests when representation ends

Although a California lawyer must take reasonable steps to prevent prejudice to the former client's interests, the lawyer will not normally be required to perform additional legal services once a substitute counsel has been retained. In addition, one California court has ruled that a lawyer was not required to warn a prospective client of an impending statute of limitations where the lawyer's withdrawal was based upon discovery of a conflict of interest with an existing client. Flatt v. Superior Court (1994) 9 Cal.4th 275, 36 Cal.Rptr.2d 537, 885 P.2d 950.

Once a replacement counsel has been retained, the former lawyer's duty under CRPC 3-700(A)(2) obligates the lawyer to cooperate with the new counsel by responding promptly to the replacement counsel's inquiries. Olguin v. California State Bar (1980) 28 Cal.3d 195, 167 Cal.Rptr. 876, 616 P.2d 858.

The following comments are taken from Karpman & Margolis pages 69-71 with certain conforming changes:

Return of Papers and Property, CRPC 3-700(D)

A clientÕs failure to sign a substitution did not ameliorate the lawyerÕs duty to release the file to the client, where Respondent did not take the position that retention of the file was required to protect the clientÕs legal interests. In Matter of Kopinski (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 716.

A one-year delay in turning over the file and executing a substitution of counsel was patently unreasonable. It was no defense that the lawyer believed the client already had copies of everything in the file. Friedman v. State Bar (1990) 50 Cal.3d 235, 266 Cal.Rptr. 632, 786 P.2d 359.

A 6-month delay in turning over a client file to the new lawyer after a lawyer was discharged was unreasonable and violated this rule. Rose v. State Bar (1989) 49 Cal.3d 646, 663, 262 Cal.Rptr. 702, 712, 779 P.2d 761, 771.

A lawyer may not retain file as security for payment of fees or otherwise refuse to consent to substitution of counsel in order to protect fee. Kallen v. Delug (2nd Dist. 1984) 157 Cal.App.3d 940, 950, 203 Cal.Rptr. 879.

The file and the lawyerÕs work product belong absolutely to the client, whether the client has paid the lawyerÕs fee or not. John F. Matull & Associates, Inc. v. Cloutier (2nd Dist. 1987) 194 Cal.App.3d 1049, 240 Cal.Rptr. 211; Weiss v. Marcus (2nd Dist. 1975) 51 Cal.App.3d 590, 124 Cal.Rptr. 297.

Duty to Avoid Foreseeable Harm to Client

An lawyerÕs failure to perform necessary services may be tantamount to a withdrawal, triggering duties under this rule, even if the period of inaction is relatively brief, if time is of the essence. Cannon v. State Bar (1990) 51 Cal.3d 1103, 1106-1108, 275 Cal.Rptr. 433, 800 P.2d 911. (lawyerÕs failure to obtain urgently needed immigration documents 3-1/2 months after employment); In the Matter of Bach (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 631, 641-642 (failure to obtain urgently needed TRO after 3 months).

The failure to advise a client in writing of a belief that the case lacks merit, and the failure to give proper withdrawal notice alerting the client to the urgency of promptly retaining new counsel, may violate this rule. In re Hickey (1990) 50 Cal.3d 571, 268 Cal.Rptr. 170, 788 P.2d 684.

The requirement that a lawyer take steps to avoid prejudice to the client applies when lawyer ceases to perform services, even absent the formation of an intent to withdraw as counsel. Baker v. State Bar (1989) 49 Cal.3d 804, 263 Cal.Rptr. 798, 781 P.2d 1344.

A lawyerÕs duties under this rule to avoid foreseeable prejudice to the client apply when the client discharges the attorney, as well as in cases of voluntary withdrawal. Garlow v. State Bar (1988) 44 Cal.3d 689, 706, 244 Cal.Rptr. 452, 749 P.2d 1307.

A lawyer representing a client in an administrative proceeding had a duty to notify the client of the denial of an administrative appeal and of the right to seek judicial review; the failure to so advise the client, or to perform any further services, constituted a violation of this rule, even if the agreement to perform post-appeal services was disputed. Kapelus v. State Bar (1987) 44 Cal.3d 179, 186-187, 242 Cal.Rptr. 196, 745 P.2d 917.

The rule requires that the withdrawing, or terminated counsel take steps to avoid any foreseeable prejudice to the client. It does not require that prejudice actually occur. Respondent failed to appear at a clientÕs deposition, knew successor counsel could not appear, and failed to obtain a postponement of the deposition. In the Matter of Riley (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 91.

Failure to avoid prejudice to a client by not giving notice to the client of the attorneyÕs intention to withdraw or to provide no further legal services. In the Matter of Aguiluz (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 41, rev. den., recommended discipline adopted (Feb. 18, 1993).

Failure to execute a substitution of counsel or to turn over the file to the new lawyer is a breach of the duty to avoid foreseeable harm to the client. In the Matter of Tindall (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 652, 663.

1.16:600   Fees on Termination

¥ Primary California References: CRPC 3-700
¥ Background References: ABA Model Rule 1.16(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤¤ 31:701, 31:1001, 31:1101 , ALI-LGL ¤¤ 43, 52, Wolfram ¤ 9.5

Measure of compensation when client discharges lawyer

Regardless of whether the client had good cause to discharge his or her lawyer, the lawyer is entitled to reasonable value of the legal services rendered before the discharge. The lawyer is entitled to recover the fee specified in the retention agreement or, in quantum meruit, for the reasonable value of the services. Fivey v. Chambers (1st Dist. 1962) 199 Cal.App.2d 457, 19 Cal.Rptr. 111. Where a lawyer employed under a contingent fee basis is discharged by the client, the lawyer is entitled to recover a percentage of the judgment eventually obtained by his successor in trial. Id. The recovery of any portion of a contingent fee, however, is only payable when the recovery is obtained. However, the discharged lawyer may perfect a lien on the cause of action to secure payment.

Return of unearned fees

CRPC 3-700(D)(2) expressly requires California lawyers to "promptly refund any part of a fee paid in advance that has not been earned." The second sentence of CRPC 3-700(D)(2), however, differs from its counterpart in MR 1.16 by expressly noting that the requirement to return an unearned fee "is not applicable to a true retainer fee which is paid solely for the purpose of ensuring the availability of the member for the matter." If a client disputes the portion of the unearned fee that must be returned, the lawyer must comply with CRPC 4-100(A)(2) which prohibits the lawyer from withdrawing the disputed portion of the fee from a client trust fund until the dispute is finally resolved.

The following comments are taken from Karpman & Margolis pgs. 69-70 with certain conforming changes:

Return of Unearned Fees

A refund of fees upon termination of employment is not required in cases involving a Òtrue retainerÓ fee, defined by CRPC 3-700 as a fee paid solely for ensuring the availability of a lawyer for a matter. However, even if payment originally was deemed to be a non-refundable retainer, a lawyerÕs subsequent oral agreement to refund any unearned balance modifies the retainer and renders the advance fee refundable under this rule. In the Matter of Bach (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 631, 641, fn.6.

A lawyer discharged by a client, with or without cause, retains the right to the reasonable value of his or her services. Fracasse v. Brent (1972) 6 Cal.3d 784, 790-792, n.4, 100 Cal.Rptr. 385, 494 P.2d 9. However, when the lawyer in contingency fee case withdraws before completion of services, the lawyerÕs right to enforce the lien for lawyerÕs fees, and the extent of the lawyerÕs recovery, depends on whether the lawyer had good cause for withdrawing, and may not be determined unilaterally by the lawyer. If the lawyer and client cannot reach an agreement, the lawyerÕs sole recourse is to an independent tribunal with the funds remaining in trust in the interim. In the Matter of Lazarus (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 387.

1.16:610      Termination of Lawyer's Authority

[See 1.2:270 Termination of Lawyer's Authority, supra].