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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


District of Columbia Legal Ethics

1.16   Rule 1.16 Declining or Terminating Representation

1.16:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 1.16
· Background References: ABA Model Rule 1.16, Other Jurisdictions
· Commentary:

1.16:101      Model Rule Comparison

Paragraph (a) of DC Rule 1.16, governing mandatory withdrawal, is identical to paragraph (a) of the Model Rule.

Paragraph (b), on permissive withdrawal, is largely the same, but with three substantive differences reflecting decisions of the Jordan Committee and one minor difference of form that was made to the Model Rule in 2002 on recommendation of the Ethics 2000 Commission.  To address the latter variance first, the Model Rule's language allowing for withdrawal from a representation if the withdrawal can be accomplished without material adverse effect on the client was moved from the body of paragraph (b) to a new subparagraph (1), and all the previous subparagraphs renumbered accordingly.  The DC Rules Review Committee did not recommend making the same change. 

The first of the substantive differences between paragraph (b) in the two rules is that the DC Rule omits what is now the Model Rule's subparagraph (b)(4), allowing a lawyer to withdraw, without regard to its effect on the client, when the client "insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement."  The Jordan Committee was of the view that the terms "repugnant" and "imprudent" were "too vague to give any meaningful guidance to the legal community" and "would provide lawyers too much leeway to withdraw when it is personally convenient to do so." The Ethics 2000 Commission's recommendations resulted in a modification of  subparagraph (b)(4) to substitute "taking action" for "pursuing an objective," and to replace "imprudent" as defining a client's action that would justify the lawyer's withdrawal with the modifying phrase "with which  the lawyer has a fundamental disagreement."  The DC Rules Review Committee considered but did not recommend adoption of a new subparagraph corresponding to the revised Model Rule provision.

Secondly, the Jordan Committee had similar objections to what is now subparagraph (b)(7) of the Model Rule, allowing withdrawal without regard to effect on the client when "other good cause for withdrawal exists," but the Court of Appeals restored a revised "other good cause" consideration in the corresponding paragraph of the DC Rule, subparagraph (b)(5), allowing a lawyer to withdraw if "the lawyer believes in good faith, in a proceeding before a tribunal, that the tribunal will find the existence of other good cause for withdrawal." 

The third substantive difference between paragraph (b) in the two rules results from the Jordan Committee's addition to subparagraph (b)(4) (corresponding to (b)(6) in the Model Rule), allowing withdrawal when the client's conduct renders representation unreasonably difficult a requirement that the conduct must also be "obdurate or vexatious."

Paragraph (c) of the DC Rule, requiring a lawyer to continue a representation despite good cause for withdrawal when ordered to do so by a tribunal, was initially identical to the corresponding paragraph of the Model Rule.  The Ethics 2000 Commission's amendments added a first sentence to that paragraph, stating that a lawyer must comply with applicable law requiring notice to or permission of a tribunal in terminating a representation, an identical change was recommended by the DC Rules Review Committee, so the two provisions are now again identical.

Paragraph (d) of the DC Rule, regarding steps to be taken to protect a client's interests upon termination of representation, adds to the Model Rule a requirement that the steps be "timely."  That paragraph also says retention of papers relating to the client is subject to DC Rule 1.8(i) rather than "other law" as in the Model Rule.  The Model Rule provision was modified in 2002 to add, to the requirement that fees that had not yet been earned be returned to the client on withdrawal, a requirement that advance payments of expenses that had not yet been incurred also be returned.  The same modification was added to the DC Rule in 2006.

The Comments to the two versions of Rule 1.16 are largely parallel and present only minor differences of substance or phraseology, except that the DC version has two Comments, now numbered [10] and [11], respectively addressing compliance with requirements of a tribunal, and return of a client's property or money, that are not found under the Model Rule.

1.16:102      Model Code Comparison

DC Rule 1.16, like the Model Rule, is substantially different from its Model Code counterpart, DR 2-110. In general, these differences reflect an intent to place greater restrictions than the Model Code upon a lawyer's ability to withdraw from representing a client.

DC Rule 1.16(a)(1)-(3) set forth the three circumstances in which a lawyer's withdrawal from representation is mandatory. The Model Code contained three analogous provisions in DR 2-110(B)(2)-(4). Although the language of these corresponding Code sections differed from the wording of the DC Rule, the underlying substance of the provisions is functionally indistinguishable, with the exception of DR 2-110(B)(2). That provision required withdrawal only in those cases in which a lawyer's representation would lead to a violation of a disciplinary rule, whereas DC Rule 1.16(a)(2) requires withdrawal when continued representation would result in a violation either of a rule of professional conduct or of any "other law." Another difference between the mandatory withdrawal requirements of the DC Rule and its Model Code counterpart is that DR 2-110(B)(1) included a provision not explicitly contained in the DC Rule, mandating withdrawal when the lawyer knows or it is obvious that the client's motive is to harass or maliciously injure another person.

The provisions of the DC Rule applying to permissive withdrawal differ more substantially from the Model Code provisions. DC Rule 1.16(b) starts with a general provision, not found in DR 2-110, that a lawyer may choose to withdraw from representing a client if doing so will not have a materially adverse effect upon the client's interests. DC Rule 1.16(b)(1)-(5) then sets forth five situations in which a lawyer has the discretion to withdraw from representing a client regardless of the effect of the withdrawal on the client. These, with some language variations, were largely reflected in DR 2-110(C)(1)-(6) of the Model Code, with two noteworthy exceptions. First, DC Rule 1.16(b)(2), which permits withdrawal if the lawyer discovers that the client has used -- emphasis on past tense -- his or her services to further a crime or fraud, does not have a corresponding provision in the Model Code. Second, the initial portion of DC Rule 1.16(b)(4), allowing for withdrawal if continued representation will be an unreasonable financial burden on the lawyer, does not have an equivalent in the Model Code. Although most of the substantive elements of the permissive withdrawal provisions of the DC Rule are reflected in the Model Code, the opposite is not true. That is, under the Model Code there were six circumstances in which a lawyer might voluntarily withdraw from a representation (regardless of the effect on the client) that are not explicitly included in the DC Rule: they are found in DR 2-110(C)(1)(a) (client insists on presenting an unsustainable claim or defense); DR 2-110(C)(1)(e) (client insists on conduct contrary to the lawyer's judgment and advice); DR 2-110(C)(2) (continued employment is likely to violate a disciplinary rule); DR 2-110(C)(3) (lawyer is unable to work with co-counsel); DR 2-110(C)(4) (mental or physical condition makes it difficult for the lawyer to be effective); and DR 2-110(C)(5) (client knowingly and freely assents).

Both DC Rule 1.16 and DR 2-110 have provisions recognizing the inherent power of courts to place limits on withdrawal from the representation of a client. Under DC Rule 1.16(c) a lawyer must continue his or her representation if ordered to do so by a court; DR 2-110(A)(1) states that, if a tribunal's rules require it, a lawyer must obtain permission from that tribunal before withdrawing from a representation.

Both DC Rule 1.16 and DR 2-110 contain substantially similar provisions -- Rule 1.16(c) and DR 2-110(A)(2) and (3), respectively -- governing a lawyer's responsibilities once withdrawal, whether mandatory or permissive, has occurred. The only noteworthy differences between the language of the DC Rule and the Code provision are that the former includes a requirement that the lawyer act in a "timely" manner in carrying out his or her responsibilities and places a limit, grounded in DC Rule 1.8(i), on a lawyer's ability to retain documents relating to the representation of a former client.

1.16:200   Mandatory Withdrawal

· Primary DC References: DC 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

There appear to be no pertinent DC court decisions or ethics opinions on this subject.

1.16:210      Discharge by Client

Under DC Rule 1.16(a)(3), a lawyer must withdraw from representation when he or she is discharged by a client. See Comment [4], acknowledging a client's right to discharge a lawyer at any time with or without cause; see also DC Ethics Opinion 173 (1986) (withdrawal is mandatory under DR 2-110(B)(4) where a law firm has been discharged by the client).

1.16:220      Incapacity of Lawyer

If a lawyer is suffering from a physical or mental incapacity that materially impairs his or her ability to provide legal representation, that lawyer is required to withdraw under DC Rule 1.16(a)(2). The predecessor provision, DR 2-110(B)(3), imposed the same requirement. See In re Larsen, 589 A.2d 400 (DC 1991) (affirming a finding that a lawyer's mental condition was severe enough to warrant mandatory withdrawal pursuant to DR 2-110(B)(3)). See also In re Robertson, 608 A.2d 756 (DC 1992) (rejecting a lawyer's claim that his deteriorating physical condition accounted for his professional misconduct).

1.16:230      Withdrawal to Avoid Unlawful Conduct

Rule 1.16(a)(1) requires a lawyer to cease representation when to continue it would lead to a violation of a rule of professional conduct or other law. See Comment [2]; DC Ethics Opinion 219 n.3 (1991) (noting that withdrawal is required to avoid assisting an ongoing fraud). DR 2-110(B), the predecessor provision, was to the same effect. In re Austern, 524 A.2d 680 (DC 1987) (imposing sanctions upon a lawyer for, among other things, failing to withdraw upon becoming aware that a settlement-related escrow account was funded with worthless checks).

In In re Ponds, 888 A.2d 234 (DC 2005), the Court approved a thirty-day suspension of a lawyer who had been found by the Board on Professional Responsibility to have violated provisions of the Maryland Rules corresponding to DC Rule 1.7(b)(4) and, derivatively, Rule 1.16(a)(1).  The respondent had been retained to represent the defendant on a charge of conspiracy to import and distribute cocaine, in the Federal District Court in Maryland.  His client pled guilty, and the court after due inquiry accepted the plea, but before the sentencing hearing, the defendant wrote a letter to the respondent accusing him of having coercing him into the guilty plea but also asking respondent to assist him in withdrawing the guilty plea; and the defendant sent a copy of this letter to the judge, along with a request for a hearing on his request to withdraw the guilty plea.  At the sentencing hearing, the judge first heard the defendant on his request to withdraw the guilty plea, and denied the request, and although the respondent did not participate in that exchange, he did represent the defendant in the sentencing hearing.  This was found by the Board to have violated Rule 1.7 because the defendant’s charge that he had coerced the guilty plea gave respondent a personal interest that conflicted with the interests of his client; and since the continued representation violated that Rule, Rule 1.16(a)(1) required his withdrawal. 

One of the numerous ethical transgressions found in In re Hager, 812 A.2d 904 (DC 2002) [which is more fully discussed under 1.7:500, above] was a violation of Rule 1.16:(a)(1)'s requirement that a lawyer withdraw from an engagement when continuing it will result in violation of the Rules of Professional Conduct. In the underlying case the lawyers representing the plaintiffs in a potential class action had made a side deal with the defendant, unknown to their clients, under which the defendant paid them $225,000 as attorneys fees and expenses, the lawyers agreed never to represent anyone with related claims against the defendant and to keep totally confidential and not to disclose to anyone all information learned during their investigation relating to the case, and all the parties agreed not to disclose most of the terms of the settlement, even to the lawyers' clients. The Rule violation that was held to bring the withdrawal obligation into play was the lawyers' negotiating the secret fee agreement while representing the clients.

DC Ethics Opinion 296 (2000) [which is more fully described under 1.7:330, above] addressed a situation where a law firm jointly represented an employer and its alien employee in seeking a visa for the employee, without any advance understanding as to whether client confidences with respect that the representation would be shared, and where the firm's consequent inability to disclose fraudulent conduct by the employee to the employer required withdrawal from both representations, under Rule 1.16(a)(1).

1.16:300   Permissive Withdrawal

· Primary DC References: DC 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

1.16:310      Withdrawal to Undertake Adverse Representation

There appear to be no DC court decisions or ethics opinions applying DC Rule 1.16 on this subject.  See, however, the discussion of the authorities under DC Rule 1.9, including the "hot potato" issue, under 1.9:300, above.

1.16:320      Circumstances Justifying Discretionary Withdrawal

In Byrd v. District of Columbia, 271 F. Supp. 2d 174 (DDC 2003), the Court, on reconsideration of an initial ruling to the contrary, denied a lawyer's motion for leave to withdraw that rested on the assertion that the plaintiff he was representing hadn't paid his fees (evidently invoking Rule 1.16(b)(3)). The Court pointed out that since the lawyer's compensation arrangement provided for a contingency fee, his client hadn't yet failed to fulfill any financial obligation to him, and continued representation wouldn't impose any unreasonable or unanticipated burden on him.

A lawyer is allowed to withdraw pursuant to DC Rules 1.16(b)(3) and (b)(4) if the "client refuses to communicate with his attorney and makes no arrangements to pay the attorney for past services." Crane v. Crane, 657 A.2d 312, 318 (DC 1995). Under DR 2-110(C)(1)(d) of the Model Code, which was similar in substance to DC Rule 1.16(b)(4), withdrawal has been permitted where the client had a history of leaving "telephone calls and letters unanswered, thus refusing to communicate with his attorney, and had made no arrangements to pay the attorney for past services." Hancock v. Mutual of Omaha Ins. Co., 472 A.2d 867, 869 (DC 1984). See also Esteves v. Esteves, 680 A.2d 398 (DC 1996), and Atlantic Petroleum Corp. v. Jackson Oil Co., 572 A.2d 469 (1990), addressing the circumstances in which a court should grant a motion to withdraw on the ground that "there has been a complete breakdown in the attorney-client relationship," 572 A.2d at 473. See also D.C Ethics Opinion 108 (1981) (allowing withdrawal where a client moved without leaving a forwarding address or telephone number and the lawyer was unable, despite diligent efforts, to locate the client in order to proceed in a matter before the applicable statute of limitations expired); DC Ethics Opinion 89 (1980) (allowing a firm to withdraw based upon the client's "deliberate disregard" of its responsibility to pay for legal services rendered); DC Ethics Opinion 85 (1980) (allowing withdrawal based upon the dilatoriness of a client); DC Ethics Opinion 21 (1976) (recognizing that withdrawal may be appropriate where a client refuses to pay expenses needed to bring an important witness to court). But see DC Ethics Opinion 139 (1984), ruling that in a criminal case where client contact was not essential in order for the lawyer effectively to proceed on behalf of the client, the lawyer could not withdraw for want of client cooperation.

DC Ethics Opinion 317 (2002) (discussed more fully under 1.7:240, above) looks at the permissive withdrawal provisions of Rule 1.16(b)(3), (4) and (5) in connection with the situation where a client who had given advance consent to a conflict of interest revokes that consent.

1.16:400   Order by Tribunal to Continue Representation

· Primary DC References: DC 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

All of the provisions governing mandatory and permissive withdrawal under DC Rule 1.16(a) and (b) are effectively limited by Rule 1.16(c), which recognizes the power of a tribunal to order a lawyer to continue representing a client even though withdrawal is required or permitted under paragraph (a) or (b). Even where this power of a tribunal has been exercised, however, Comment [11] notes that a lawyer retains the option, while continuing his or her representation, to challenge the jurisdictional authority for or merit of the tribunal's order preventing withdrawal.

DC Ethics Opinion 266 (1996) ruled that where the rules of a tribunal require a lawyer to seek leave of the tribunal before withdrawing from a representation, the Rules of Professional Conduct also require the lawyer to seek such approval: it is not sufficient for the withdrawing lawyer merely to inform the client of upcoming proceedings and advise the client to secure new counsel. The Opinion addressed an inquiry from a lawyer who had been representing a client in a proceeding before the Immigration and Naturalization Service, asking what his ethical obligations were when he received notice of a hearing after he no longer represented the client but before he had formally withdrawn as counsel. The inquirer noted that INS rules require a lawyer who seeks to withdraw from a case to obtain leave from the immigration judge and provide that unconditional leave to withdraw will be granted only if the lawyer provides the client's last known address to the immigration judge and shows that he attempted to advise the client, at the client's last known address, about the scheduled hearing. If the lawyer fails to provide that information, then the lawyer's withdrawal will be granted only on condition that the lawyer remain responsible for acceptance of service for the client. The Opinion assumed that the inquirer was reluctant to file a notice of withdrawal out of concern that the notice would trigger a hearing, which would not be in the interests of the client, but ruled that the obligation under Rule 1.16(d) to take "steps to the extent reasonably practicable to protect the client's interests" did not trump what the opinion treated as a requirement of Rule 1.16(c), and in addition Rule 3.4(c), that the lawyer, in withdrawing from the representation, first seek leave of the tribunal as required by its rules. The Opinion went on to say that, if a lawyer did not know the location of her client, there would be no harm to the client in so representing to the immigration judge; but that a more difficult issue would arise if a lawyer did know the client's whereabouts, since that information might well be a "secret" that the lawyer would be forbidden by Rule 1.6(b) to disclose. In those circumstances, the Opinion stated, the lawyer's obligation to protect the client's secret would govern; but the effect of this would not be to prevent the lawyer's withdrawal, but only to prevent an unconditional withdrawal, thus leaving the lawyer under a requirement to continue to accept service on her former client's behalf.

1.16:500   Mitigating Harm to Client Upon Withdrawal

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

The most frequently addressed issue relating to a lawyer's duty to mitigate harm upon withdrawal concerns the propriety of the lawyer's asserting a lien on client files or attorney work-product documents. As a general rule, a lawyer has an affirmative duty under DC Rule 1.16(d) to return to the client all papers and property to which that client is entitled. See In re Ryan, 670 A.2d 375, 380 (DC 1996) ("a client's right to documents exists when the client has a plausible ownership interest in them and there is no competing claim to their ownership"); DC Ethics Opinion 209 (1990) (recommending that a lawyer contact all former clients before destroying files relating to a prior representation, even if there was no legal or contractual duty to keep such documents); DC Ethics Opinion 168 (1986) (interpreting DR 2-110(A)(2)'s requirement of avoiding prejudice to the client to mean that upon withdrawal a lawyer must provide to the client or the client's new counsel all material "likely to be useful to the client or the substitute counsel's representation of that client's interests"); DC Ethics Opinion 333 (2005) (holding that law firm was required to provide former client’s successor with all materials in the client’s files substantively related to the representation, including such opinion work product as lawyer notes and internal memoranda reflecting lawyers’ thoughts, impressions and strategy ideas).

One of the numerous ethical transgressions found in In re Hager, 812 A.2d 904 (DC 2002) [which is more fully discussed under 1.7:500, above] was a violation of Rule 1.16(d)'s requirement that a lawyer withdrawing from an engagement take steps to protect the client's interests. In the underlying case the lawyers representing the plaintiffs in a potential class action had made a side deal with the defendant, unknown to their clients, under which the defendant paid them $225,000 as attorneys fees and expenses, the lawyers agreed never to represent anyone with related claims against the defendant and to keep totally confidential and not to disclose to anyone all information learned during their investigation relating to the case, and all the parties agreed not to disclose most of the terms of the settlement, even to the lawyers' clients. The Rule 1.16(d) violation found in this case lay in the lawyers' promise to the defendant, in connection with the secret settlement agreement, not to disclose any information learned in the investigation of the matter, which would mean the clients' files could not be returned to them, and this would prevent the clients from pursuing their claims against the defendant.

In re Arneja, 790 A.2d 552 (DC 2002) involved, inter alia, a violation of Rule 1.16(d) by reason of a lawyer's foot-dragging in turning over the client's files to successor counsel despite repeated and urgent requests.

DC Ethics Opinion 270 (1997) addressed an inquiry by a lawyer who had been briefly employed by a sole practitioner to work on a particular matter. The client in that matter had recently insisted that the employing lawyer write an aggressive letter to a third party, despite the lawyer's advice that sending such a letter was imprudent, and the employing lawyer had responded by what he told the inquirer was his usual practice -- namely, drafting a letter satisfying the client's demand and sending a copy to the client, but not sending the letter itself to the addressee. The inquirer, disturbed by this practice, quit the employment and asked the Legal Ethics Committee (1) whether, after leaving the employment, she had a duty to ensure that the client was informed of the employing lawyer's misrepresentations, and (2) whether, having left, she had a duty to report the lawyer's misconduct to disciplinary authorities. The Opinion answered both questions affirmatively. As to disclosure to the client, the Opinion pointed out that if the employment had continued, the inquirer would have had an obligation under DC Rules 1.4 and 5.2 to inform the client about the fictitious letter, and indeed to take action to see to it that no further fictitious letters were sent. Since the inquirer had left the employment, she no longer had a duty under DC Rule 1.4, but did have a duty, under DC Rule 1.16, upon her withdrawal to "take timely steps to the extent practicable to protect the client's interest," a duty that the Opinion said applied despite the fact that she was a subordinate and not the lawyer responsible for the representation. This obligation under DC Rule 1.16(d) had in this instance been discharged in what the Committee noted was the manner least disruptive to the existing lawyer-client relationship -- namely, by telling the former employer that he should make disclosure to the client, which she had done. As to whether the inquirer had an obligation to report the employer's conduct to the disciplinary authorities under DC Rule 8.3, the Opinion held that she did, for "the conduct of the employing lawyer destroyed the heart of the lawyer-client relationship," and constituted dishonesty and deceit under DC Rule 8.4(c) and a violation of DC Rule 1.4.

Comment [12] to DC Rule 1.16, which was added effective November 1, 1996 [see 1.16:101 above], spells out a lawyer's obligation, when holding property or funds as to which a portion is in dispute, to distribute promptly any portion that is not in dispute.

Although DR 2-110(A)(2) of the DC Code, which was identical to its counterpart in the Model Code, on its face put no limits on a lawyer's right to assert a retaining lien upon a client's files or that lawyer's own work-product in order to ensure payment of an outstanding fee, opinions of the DC Bar Legal Ethics Committee took a dubious view of retaining liens. Thus, DC Ethics Opinion 59 (undated) stated that a lawyer could assert a lien on a client's file even if the file was "necessary" for new counsel, except when "(a) the client is financially unable to pay the fees; (b) the client gives other security for payment of the fees; or (c) the file is necessary to the defense of a serious criminal charge or the protection of the client's personal liberty." The Opinion also stated that "[t]he lawyer should assume the initiative . . . in seeking to avoid the need for actual invocation of the lien, and should ordinarily renounce the lien unless his legitimate financial interests clearly outweigh the adversely affected interests of his former client." Although the Opinion thus recognized that retaining liens were allowed under the Code provision, it expressed "serious doubts" as to whether they should continue to be permitted. Id., n.13. See also DC Ethics Opinion 90 (1980) (reiterating the formulation of Opinion 59); DC Ethics Opinion 100 (1981) (where the lawyer and client have agreed on termination of the lawyer's services the lawyer may properly assert a retaining lien against money held in an escrow account but the lien does not give rise to a right of set-off: i.e., the lawyer may not use the escrowed funds to satisfy his claim for fees); DC Ethics Opinion 107 (1981) (a lawyer retained by out-of-state counsel to participate as co-counsel in litigation who has a fee dispute with counsel but not with the client may not assert a retaining lien); DC Ethics Opinion 119 (1983) (describing the retaining lien as "an unattractive and potentially quite harmful tool"); DC Ethics Opinion 191 (1988) (asserting that "the ethical right to assert a lawyer's lien, and then withhold client papers, during a fee dispute is a narrow one and must be used sparingly"). See also DC Ethics Opinion 195 (1988), which explained the difference between "retaining" or "general" liens (which allow the lawyer to withhold property of the client to compel payment of fees) and "charging" or "special" liens (which attach only to a cause of action or the proceeds thereof), and ruled that an agreement between a patent lawyer and his client assigning to the lawyer rights in a patent to secure payment of the lawyer's fee created neither kind of lien.

DC Rule 1.8(i)'s prohibition on a lawyer's imposing a lien on any part of a client's files except the lawyer's own work product, and then only in strictly limited circumstances [discussed in 1.8:1140, above], which has no parallel in the corresponding Model Rule, and which is reinforced by DC Rule 1.16(d)'s statement that "[t]he lawyer may retain papers relating to the client to the extent permitted by Rule 1.8(i)," reflects the hostility to retaining liens expressed in these ethics opinions. Thus, as stated in DC Ethics Opinion 250 (1994),

[I]t seems clear . . . that retaining liens on client files are now strongly disfavored in the District of Columbia, that the work product exception permitting such liens should be construed narrowly, and that a lawyer should assert a retaining lien on work product relating to a former client only where the exception is clearly applicable and where the lawyer's financial interests . . . "clearly outweigh the adversely affected interests of his former client."

See also DC Ethics Opinion 230 (1992) (a retaining lien that was properly asserted against client's files prior to January 1, 1991, when the DC Rules came into effect, became no longer permissible as of that date by reason of Rules 1.16(a) and 1.8(i)).

Accordingly, it seems clear that under the current rule a lawyer upon withdrawal should rarely be allowed to retain a lien on files as a means of ensuring the payment of an outstanding fee. [See also 1.15:230, above.]

DC Ethics Opinion 283 (1998), which is discussed more fully under 1.15:230 above, addresses a lawyer's obligation regarding disposition of files relating to representation of a former client.

1.16:600   Fees on Termination

· Primary DC References: DC 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 § 40, Wolfram § 9.5

Upon withdrawal from a representation, a lawyer is required under Rule 1.16(d), among other things, to refund to the client any advanced fee that has not been earned. In re Sumner, 665 A.2d 986 (DC 1995). See also DC Ethics Opinion 37 (1977) (addressing the issue of whether the lawyer or the client should bear the cost associated with "duplicative fees" that sometimes result from the withdrawal of a lawyer).

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

There appear to be no pertinent DC court decisions or ethics opinions on this subject.