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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Connecticut Legal Ethics

1.16   Rule 1.16 Declining or Terminating Representation

1.16:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 1.16
Background References: ABA Model Rule 1.16, Other Jurisdictions
Commentary:
Connecticut Commentary:

1.16:101      Model Rule Comparison

The text of Model Rule 1.16 is substantially similar to Conn. Rule 1.16.

Paragraph (a) of Model Rule 1.16 and Conn. Rule 1.16 regarding mandatory withdrawal are identical, mandating that a lawyer shall not represent or cease representation if (1) representation would result in a violation of the Rules, (2) the lawyerÁs mental or physical health materially impairs his ability to represent his client, or (3) when the lawyer is terminated.

Paragraph (b) of Model Rule 1.16 and Conn. Rule 1.16 are nearly identical, excluding the following differences. First, the provision regarding permissible withdrawal, so long as there is not material adverse effect on the interests of the client, is within the preamble to section (b) in Conn. Rule 1.16, whereas it is subsection (1) in the Model Rule. Second, Model Rule 1.16(b)(4) and its counterpart in Conn. Rule 1.16(b)(3) contain the same general idea, but with different wording. The Model Rule permits withdraw if the client insists Ëupon taking actionÓ that the lawyer believes is repugnant, whereas the Conn. Rule permits the same if the client insists Ëupon pursuing an objectiveÓ that the lawyer believes is repugnant. Furthermore, Model Rule 1.16(b)(4) permits withdraw if the client takes action with which the Ëlawyer has a fundamental disagreement,Ó whereas Conn. Rule 1.16(b)(3)Ás replaces the quoted language with Ëimprudent.Ó

Paragraph (c) of Model Rule 1.16 and Conn. Rule 1.16 are similar. Model Rule adds the preliminary sentence ËA lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation.Ó

Paragraph (d) of the Rules are substantially similar with the exception of two differences. First, Model Rule 1.16(d) contains the additional words Ëor expenseÓ and ËincurredÓ regarding the clientÁs entitlement to a refund of Ëany advance payment of fee or expense that has not been earned or incurred.Ó Second, Conn. Rule 1.16(d) contains the additional sentence requiring the lawyer to confirm termination, by either lawyer withdrawal or client discharge, in writing to the client Ëbefore or within a reasonable time after the termination of representation.Ó

1.16:102      Model Code Comparison

Conn. Rule 1.16 is substantially different from its Model Code counterpart, DR 2-110.

DR 2-110(B) contains four situations in which withdrawal is mandatory. DR 2-110(B)2-4 are similar to Conn. Rule 1.16(a)(1)-(3) regarding withdrawal in the case of violation of the Rules, mental or physical impairment of the attorney, or discharge by the client. DR 2-110(B)(1) contains an additional situation in which withdrawal is mandatory, where the lawyer Ëknows or it is obvious that his client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for him, merely for the purpose of harassing or maliciously injuring any person.Ó Moreover, DR 2-110(B) and Conn. Rule 1.16(a) are similar in the requirement that a lawyer shall not represent a client under the enumerated circumstances or shall withdraw from representation if such circumstances arise. DR 2-110(B), however, is more specific in outlining that if a lawyer is representing a client before a tribunal, the lawyer must seek permission, if necessary, before withdrawing from representation and if representing the client in other matter, shall withdraw. Conn. Rule 1.16 is silent regarding whether permission from the court is needed in these two circumstances, however, the comments note that disclosure to the court may be necessary.

DR 2-110(C) establishes 6 situations where withdrawal by the attorney is permissible, unless the attorney is representing a client in matters that are pending before the tribunal. Some of the categories are somewhat similar to the six situations established under Conn. Rule 1.16(b). Both Rules permit withdrawal if the client seeks to pursue an illegal course of conduct or if the client has used the lawyerÁs services (under Conn. Rule 1.16(b)(2)) or insists that the lawyer pursue a course of conduct that is ËillegalÓ (DR 2-110(C)(1)(b)) or Ëcriminal or fraudulentÓ (Conn. Rule 1.16(b)(1)) or is a Ëcrime or fraudÓ (Conn. Rule 1.16(b)(2)). In general, both Rules provide for withdrawal if the client insists on pursing an objective that is against the lawyerÁs advice. In Conn. Rule 1.16(b)(3), a lawyer may withdraw if the client insists on Ëpursuing an objective that the lawyer considers repugnant or imprudent.Ó DR 2-110(C)(1)(b)(e) is more narrow and permits a lawyer to withdraw, if the matter is not pending before a tribunal, because the client insists that the lawyer Ëengage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited by the Disciplinary Rules.Ó Both Rules permit withdrawal in the situation where the client has failed to perform an obligation owed to the attorney with regard to services rendered. In Conn. Rule 1.16(b)(4), a lawyer may withdraw if the client fails to substantially fulfill an obligation owed to the lawyer based upon his services and the client Ëhas been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.Ó DR 2-110(C)(1)(f) is more specific and permits withdrawal if the client Ëdeliberately disregards an agreement or obligation to the lawyer as to expenses or fees.Ó DR 2-110(C)(1)(d), in part, contains the provision in Conn. Rule 1.16(b)(5) regarding permissible withdrawal when a clientÁs conduct unreasonably interferes with an attorneyÁs ability to represent his client. DR 2-110(C)(1)(d), however, does not contain Conn. Rule 1.16(b)(5)Ás additional language regarding permissible withdrawal if Ërepresentation will result in an unreasonable financial burden on the lawyer.Ó Both Rules contain one provision that the other does not, Conn. Rule 1.16(b)(6) provides for a general catch-all reason for permissible withdrawal Ëother good cause for withdrawal exists.Ó Whereas, DR 2-110(C)(1)(a) contains a provision regarding permissible withdrawal if the client insists upon asserting a claim or defense that is not, in good faith, warranted under the law.

DR 2-110(A)(1) and Conn. Rule 1.16(c) embody the same general idea that if an attorney is ordered by the appropriate tribunal to continue representation, he must do so and does not have the ability to withdraw.

DR 2-110(A) contains similar provisions to Conn. Rule 1.16(d) regarding the lawyerÁs obligations upon termination or withdrawal. Both Rules establish the steps that a lawyer must take in order to protect his former client including, allowing time for the client to seek another counsel, the return of the clientÁs papers and property, and refund of any part of the fee that has not been earned. DR 2-110(A)(2) contains the provision that the departing attorney must give due notice to his client, where Conn. Rule 1.16(d) does not specifically require such notice.

1.16:200   Mandatory Withdrawal

Primary Connecticut References: CT Rule 1.16(a)
Background References: ABA Model Rule 1.16(a), Other Jurisdictions
Commentary:
Connecticut Commentary:

1.16:210      Discharge by Client

In Sullivan v. Town of Monroe, No. CV000370545, 2001 WL 951363 (Conn.Super. 2001), the court held that an attorneyÁs continued representation of her clients after termination was a violation of Rule 1.16(a)(3). In Sullivan, the clients, by letter, clearly indicated their desire to end litigation and terminate their relationship with their attorney. The attorney, however, continued to file various motions with the court regarding the litigation. The court noted that Ëan attorney has no right to substitute his or her judgment for that of the client with respect to the duration of litigation.Ó 2001 WL at **7.

A client has the absolute right to discharge his attorney at any time, with or without cause. Sanchez v. State Prison Warden, No. Cv 921474S, 1995 WL 569430 (Conn.Super. 1995); Santiago v. State Prison Warden, No. CV 931784S, 1995 WL 519729 (Conn.Super. 1995).

1.16:220      Incapacity of Lawyer

In Carcell v. TJX Companies, Inc., 192 F.R.D. 61 (D.Conn. 2000), the court held that an attorneyÁs health problems, including one month of inpatient treatment and one subsequent month of outpatient treatment, caused him to neglect many of his obligations to his client (i.e., failure to respond to opposing partyÁs motion to compel). The court opined that these failures by the attorney mandated his withdrawal from representation under Rule 1.16(a)(2) because his illness interfered with providing competent representation.

1.16:230      Withdrawal to Avoid Unlawful Conduct

In Informal Opinion 99-9 (1999), the Committee opined that when a lawyerÁs client executed and filed several financial affidavits containing false information and/or omitting material information in the course of a divorce case, the attorney was permitted under Rule 1.16(b)(2) to withdraw because the lawyerÁs services were used to perpetrate a crime or fraud on the court. The Opinion also discussed the possibility that withdrawal under the circumstances may be required under Rule 1.16(a)(1)Ás mandate that an attorney must withdraw if Ërepresentation will result in violation of the Rules of Professional Conduct or other law.Ó The Committee opined that Rule 3.3, Candor Toward the Tribunal, Rule 3.4, Fairness to Opposing Party and Counsel and Rule 4.1, Truthfulness in Statements to Third Parties could require withdrawal by the attorney under these circumstances.

In Informal Opinion 99-4 (1999), the Committee held that a lawyer who represented two clients with conflicting interests as defined in Rule 1.7, was required to withdraw from representation under Rule 1.16(a)(1).

Informal Opinion 94-30 (1994) opined that an attorney is required to withdraw from representation under Rule 1.16(a)(1) when representing a client who persists in wiretapping his wifeÁs phone calls, a criminal offense. The Opinion noted that the attorney must withdraw because continued representation of the client would result in violation of Rule 8.4(a), (c), and (d), and possibly (b) of the Rule as well as federal law.

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

[The discussion of this topic has not yet been written.]

1.16:300   Permissive Withdrawal

Primary Connecticut References: CT Rule 1.16(b)
Background References: ABA Model Rule 1.16(b), Other Jurisdictions
Commentary:
Connecticut Commentary:

1.16:310      Withdrawal to Undertake Adverse Representation

There appears to be no pertinent Connecticut cases or ethics opinions on this subject.

1.16:320      Circumstances Justifying Discretionary Withdrawal

In Matza v. Matza,, 226 Conn. 166, 627 A.2d 414 (Conn. 1993), the court discussed Rule 1.16(a) and (b). In Matza, the attorney filed a motion to withdraw from representation of his client based on his reasonable belief that the clientÁs proposed financial affidavit was perjurious or misleading. The court held that the requirements for permissive withdrawal under Rule 1.16(b)(1) were satisfied allowing the attorney to withdraw from representation, notwithstanding the fact that withdrawal occurred during the course of his clientÁs trial. The opinion noted that under Rule 1.16(b) a lawyer is permitted to withdraw in two different situations: ËFirst, a lawyer may withdraw for any or no reason, even without client consent, so long as withdrawal can be accomplished without Çmaterial adverse effectÁ on the client. Second, in the six situations catalogued in the rule, a lawyer may withdraw even if there is harm to the client.Ó 627 A.2d at 419-420 (quoting 1 G. Hazard & W. Hodes, The Law of Lawyering (2d Ed. 1992 Sup.) ã 1.16.301).

In Hill v. Hill, 35 Conn.App. 160, 644 A.2d 951 (1994), the court noted that an attorney who walked out of the courtroom, despite having been admonished by the judge that the case would continue, is not tantamount to withdrawal. The court opined that the attorneyÁs ËdesertionÓ of the case, at that moment, was not equivalent to withdrawing his appearance. Rather, the Connecticut Practice Book prescribes the appropriate method of withdrawal.

In Statewide Grievance Committee v. Gifford, No. CV 000800490S, 2002 WL 237821 (Conn. Super. 2002), the court held that although the attorney believed that his clientÁs case had absolutely no merit, the attorney cannot unilaterally abandon the case without informing the client.

In Formal Opinion 41, the Committee opined that an in-house counselÁs belief that some of the companyÁs actions were illegal or criminal was sufficient for permissive withdrawal under Rule 1.16(b).

In Informal Opinion 97-19 (1997), the Committee noted that although withdrawal from representation of an impaired client may be permissible under Rule 1.16(b), it is not the preferred course of action. The OpinionÁs appendix is ABA Formal Opinion 96-404 which suggested that a lawyer should seek appropriate protective action on behalf of the client rather than seek withdrawal from representation.

In Informal Opinion 95-24 (1995), the Committee held that an attorneyÁs retainer agreement which provided for attorney withdrawal and conversion of fee agreement from a contingency fee to an hourly fee was violative of the Rules. Specifically, the agreement provided that if the attorney obtained a settlement offer of more than $300,000 from the adverse party and the attorneyÁs client did not accept such an offer, the attorney would be permitted to automatically withdraw his representation and be paid on an hourly basis based on services rendered to the date of the withdrawal (the original agreement was set on a contingency fee basis). The Committee opined that the attorneyÁs withdrawal was not permitted under Rule 1.16(a) or (b). The Committee noted that an agreement for attorneyÁs services cannot include terms that could Ëinduce the lawyer to improperly curtail services for the client....Ó

In Informal Opinion 94-29 (1994), the Committee opined that a lawyer make seek withdrawal pursuant to Rule 1.16(b)(3), if a client (a minor child in a dissolution action) insists on pursuing an objective that the attorney believes is repugnant or imprudent, provided that there is no material adverse effect on the clientÁs interests.

In Informal Opinion 93-22 (1993), the Committee discussed withdrawal under Rule 1.16(b)(5) where withdrawal is permissible if Ëthe representation will result in an unreasonable financial burden on the lawyer....Ó In this case, the inquiring firm had two cases, on a contingency fee basis, where the opposing party defendants had either been taken over by the Federal Deposit Insurance Corporation or had declared Chapter 11 bankruptcy. In the event of judgment, the firm was likely to recover little or nothing. The Opinion noted that a less profitable case is not an unreasonable financial burden. In determining whether withdrawal is permissible pursuant to Rule 1.16(b)(5), the firm should analyze the Ëamount of time and money already expended, and to be expended, the likelihood of being successful on [the firmÁs] claim, the likelihood that either defendant was going to be taken over by the FDIC or file bankruptcy at the time of suit, and the likelihood of successful recovery of funds now.Ó

In Informal Opinion 92-26 (1992), a clientÁs mental disability impaired the attorney-client relationship to such an extent that it permitted withdrawal under Rule 1.16(b). Due to the clientÁs mental impairment, communications between attorney and client were difficult or impossible (i.e., for a period of time the attorney did not have his clientÁs new address and phone number, upon reaching the client to discuss a proposed settlement of her personal injury case, the client refused to discuss the settlement, but rather yelled at her attorney for hiring a private investigator to locate her whereabouts). The Opinion noted that although withdrawal was permissible under the facts of the case, it must be accomplished in compliance with Rule 1.16 and Connecticut Practice Book Section 77.

1.16:400   Order by Tribunal to Continue Representation

Primary Connecticut References: CT Rule 1.16(c)
Background References: ABA Model Rule 1.16(c), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Vachula v. General Electric Capital Corp., 199 F.R.D. 454 (D.Conn. 2000), the court held that the fact that a client is ËdifficultÓ is not sufficient cause to allow for permissive withdrawal under Rule 1.16(b). In Vachula, due to problems between the attorney and his client, the attorney filed a motion for withdrawal. The court denied the motion stating that although there are circumstances in which a clientÁs conduct renders representation extremely difficult would permit withdrawal, this case did not fall within that exception. Although some of the clientÁs conduct was disruptive and difficult (i.e., client failed and refused to heed the advice of counsel regarding preparation for trial; client insisted upon pursuing a course of conduct that the attorney considered imprudent), the court noted that the motion for withdrawal must be denied because it was on the eve of trial and would most likely disrupt the prosecution of the suit.

In Informal Opinion 95-23, the Committee opined that a provision in a retainer agreement permitting an attorney to withdraw from representation for non-payment of fees was improper. The Opinion cited the Connecticut Practice Book Section 77 which requires an attorney, who has filed an appearance on behalf of his client, to obtain the permission of the court to withdraw the appearance, except in certain enumerated circumstances. There is, however, no exception to this requirement for non-payment of attorneyÁs fees.

1.16:500   Mitigating Harm to Client Upon Withdrawal

Primary Connecticut References: CT Rule 1.16(d)
Background References: ABA Model Rule 1.16(d), Other Jurisdictions
Commentary:
Connecticut Commentary:

In Statewide Grievance Committee v. Faille, No 381581, 1990 WL 277466 (Conn. Super. 1990), the court held that an attorney violated Rule 1.16(d). In Faille, although the attorney effectively terminated his representation of his clients, he did so without notice to his clients in violation of Rule 1.16(d)Ás requirement that a lawyer must take reasonable steps to give his clients notice of withdrawal. Moreover, the attorney failed to facilitate his clients in finding new counsel and to surrender their file to them in contravention of Rule 1.16(d)Ás requirements that (1) the attorney allow time for his clients to find new counsel before withdrawal and (2) the attorney must surrender papers and property of the client to his former client.

In Paige v. Statewide Grievance Committee, No. CV 950550327, 1996 WL 55995 (Conn. Super. 1996), the court held that requiring a client to sign an undated pro se appearance at the inception of the attorney client relationship in order to allow the attorney to file it with the court in the event the clientÁs failure to pay attorneyÁs fee is a violation of Rule 1.16(d). The court noted that Ëif a lawyer arms herself in advance with a signed substitute appearance form, she has in effect intentionally placed herself in a position to disregard those rules (applicable rules in the Practice book) and cut the client loose without further ado.Ó

In Block v. Statewide Grievance Committee, 47 Conn. Supp. 5, 771 A.2d 281 (Conn. Super. 2000), an attorney violated Rule 1.16(d)Ás mandate that upon termination of representation, an attorney must surrender papers and property to which the client is entitled. In Block, the attorney only returned all of the pleadings in the case, but failed to return copies of magazine articles, news items and other documents. Although the client had the originals of these items, the statewide grievance committee opined that failure to return these materials violated Rule 1.16(d).

In Informal Opinion 94-26, the Committee outlined three general duties an attorney has in order to effect a valid/ethical voluntary withdrawal under Rule 1.16. First, the attorney must provide reasonable notice to the client informing him of the attorneyÁs intention to withdraw. Second, the withdrawing attorney should suggest employment of other counsel upon termination. Third, the attorney must return all papers and property upon termination of the attorney-client relationship. Once the attorney completes these three obligations, the attorney has no further duty under Rule 1.16 as well as no further obligation to continue to respond to communication from the former client.

1.16:600   Fees on Termination

Primary Connecticut References: CT Rule 1.16(d)
Background References: ABA Model Rule 1.16(d), Other Jurisdictions
Commentary:
Connecticut Commentary:

In State of Connecticut v. Fernandez,, 254 Conn. 637, 758 A.2d 842 (2000), the court noted the attorneyÁs return to his clientÁs brother of the unearned portion of his retainer is in compliance with Rule 1.16(d).

In Formal Opinion 31, the Committee held that Rule 1.16(d) requires a discharged lawyer, working on a contingency fee basis, to surrender the file after demand for its return to the client or to new counsel if Ë(a) there is an agreement with the client or successor counsel concerning payment of fees and expenses or (b) successor counsel provides the discharged lawyer with a letter that he will hold on his or her clientÁs funds sufficient proceeds from the settlement to pay the discharged lawyer what he or should would have been entitled to under the contingency fee agreement...Ó. The Opinion also noted that where a lawyer is discharged under Rule 1.16(a)(3), the lawyer will be paid in quantum meruit rather than by contract.

In Informal Opinion 95-4, the Committee opined that when a lawyer terminates representation of a client pursuant to the Rules, the Ëlawyer may still be entitled to a fee the calculation of which depends on the facts. A proper termination of representation does not automatically constitute a waiver of the lawyerÁs right to be paid.Ó

In Informal Opinion 00-3, the Committee opined that Rule 1.16(d) requires a discharged attorney to return his former clientÁs file to the client or to the clientÁs new representative. The Opinion noted that it is normally impermissible for an attorney to charge his former client costs of photocopying the files, absent an express agreement between the parties. The Opinion noted that there are certain circumstances where an attorney may retain a lien on the file where fees or disbursements are due and owing, not where the attorney seeks costs of copying the file.

In Informal Opinion 94-12 (1994) the Committee, in seeking to define Ëthe papers and property to which the client is entitledÓ under Rule 1.16(d), cited with apparent approval ABA Informal Opinion 1376 (1977) requiring return of Ëall of the material supplied by the client to the attorneyÓ and any Ëend productÓ the attorney had been retained to secure; but not necessarily Ëhis internal notes and memos which have been generated primarily for his own purposes in working on the clientÁs problem.Ó

In Informal Opinion 99-7, the Opinion discussed that although Rule 1.16(d) requires a discharged attorney to turn over his clientÁs files to the former client, there are situations where an attorney may retain a lien on the file (as discussed in Informal Opinion 95-1). There are situations, however, in which a lawyer may not retain a lien on a file as established in Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 645 (1987): Ë(i) when the attorney voluntarily withdraws from the matter; (ii) when the attorney has been discharged for good cause; (iii) under Ëunusual circumstancesÓ where retaining the clientÁs files could result in prejudice to the client; or (iv) where there has been payment, adequate furnishing of security or a mutually acceptable arrangement between the parties in dispute.Ó The Committee noted that when an attorney voluntarily withdraws for just cause, he may retain a lien on a clientÁs file. Further, the Opinion highlighted that voluntary withdrawal was permitted because the client intentionally disregards an agreement or an obligation to his layer as to expenses or fees is based on just cause.

In Informal Opinion 95-1, the Committee noted that under Rule 1.16(d) a lawyer may retain papers only to the extent to obtain a security for fees unpaid by the former client. The lawyer may not retain files and papers of the former client where the clientÁs fees have been paid in full. Moreover, the lawyer may retain certain documents as permitted by other law. The attorney in the case at hand argued that certain papers were protected by the work-product doctrine. The Opinion noted, however that work-product immunity is inapplicable in disputes between lawyer and client. Informal Opinion 92-21 discussed the same issue, also noting that title searches and/or abstract are client property that must be returned to the client upon attorney discharge under Rule 1.16(d).

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

In Informal Opinion 89-8, the Committee suggested certain actions in situations where an attorney desires to withdraw under Rule 1.16, but does not know where his client is located. The Opinion noted that mailing a notice of withdrawal to the last known address, publication in local newspapers, and sending notice to third-parties who may have contact with the client are reasonable actions by the withdrawing lawyer. The Opinion further noted that once the attorney effectively has withdrawn from representation, he has no authority to settle his former clientÁs case, absent a power of attorney, a provision granting him the authority in the retainer agreement, or Ëas a result of other actions creating that authority by implication.Ó