skip navigation
search

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Kentucky Legal Ethics

1.16  Rule 1.16 Declining or Terminating Representation

1.16:100  Comparative Analysis of Kentucky Rule

1.16:101   Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 1.16. It differs from the Model Rule in that MR 1.16(b)(4) allows a lawyer to withdraw from representation if "the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement."  KRPC 1.16(b)(3) allows a lawyer to withdraw if "[t]he client insists upon pursuing an objective that the lawyer considers repugnant or imprudent."  In addition, MR 1.16(c) contains the following sentence which is not in the Kentucky rule:  "A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation."  Also, the Kentucky rule does not contain the last sentence of MR 1.16(d): "The lawyer may retain papers relating to the client to the extent permitted by other law."

The KRPC 1.16 commentary is almost identical to that of MR 1.16.  MR 1.16, Comment [1] references MR 1.2(c), MR 6.5, and MR 1.3, Comment [4].  MR 1.16, Comment [3] reminds lawyers of "their obligations to both clients and the court under" MR 1.6 and MR 3.3.  Finally, KRPC 1.16, Comment [10] has no counterpart in MR 1.16.

1.16:102   Model Code Comparison

With regard to KRPC 1.16(a), DR 2-109(A) provided that a lawyer "shall not accept employment . . . if he knows or it is obvious that [the prospective client] wishes to . . . [b]ring a legal action . . . or otherwise have steps taken for him, merely for the purpose of harassing or maliciously injuring any person . . . ." Nor may a lawyer accept employment if the lawyer is aware that the prospective client wishes to "[p]resent a claim or defense . . . that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing law." DR 2-110(B) provided that a lawyer "shall withdraw from employment . . . if:

" (1)   He knows or it is obvious that his client is bringing the legal action . . . or is otherwise having steps taken for him, merely for the purpose of harassing or maliciously injuring any person.

" (2)   He knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.

" (3)   His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively.

" (4)   He is discharged by his client."

With regard to KRPC 1.16(b), DR 2-110(C) permitted withdrawal regardless of the effect on the client if:

" (1)   His client: (a) 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; (b) personally seeks to pursue an illegal course of conduct; (c) insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules; (d) by other conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively; (e) insists, in a matter not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules; (f) deliberately disregards an agreement or obligation to the lawyer as to expenses and fees.

" (2)   His continued employment is likely to result in a violation of a Disciplinary Rule.

" (3)   His inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal.

" (4)   His mental or physical condition renders it difficult for him to carry out the employment effectively.

" (5)   His client knowingly and freely assents to termination of his employment.

" (6)   He believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal."

With regard to KRPC 1.16(c), DR 2-110(A)(1) provided: "If permission for withdrawal from employment is required by the rules of a tribunal, the lawyer shall not withdraw . . . without its permission."

The provisions of KRPC 1.16(d) are substantially identical to DR 2-110(A)(2) and (3){DR 2-110(A)(3)}.

1.16:200  Mandatory Withdrawal

KRPC 1.16(a) provides that except when ordered by a tribunal to continue services, a lawyer shall not represent a client, or where representation has commenced, shall withdraw from the representation of a client if the lawyer is discharged by the client, suffers from incapacity, or is tempted to perform unlawful conduct.

1.16:210   Discharge by Client

A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer&'s services.  KRPC 1.16, Comment [4].  A lawyer should discontinue service once the lawyer is discharged.  KRPC 1.16(a)(3).  However, if the client is mentally incompetent, the client may lack the legal capacity to discharge the lawyer, or may not realize that the discharge would be seriously adverse to the client&'s interests.  Rule 1.16, Comment [6].  In this situation, the lawyer should make special effort to help the client consider the consequences and, in an extreme case, may initiate proceedings for a conservatorship or similar protection of the client. KRPC 1.16, Comment [6].  See also [Client Under a Disability, supra at, 1.14]

1.16:220   Incapacity of Lawyer

A lawyer should choose not to represent a client, or should discontinue service, if the lawyer&'s physical or mental condition materially impairs the lawyer&'s ability to represent the client.  KRPC 1.16(a)(2).  For example, in Kentucky Bar Ass&'n v. Zimmerman, 69 S.W.3d 465 (Ky. 2001), an attorney was permanently disbarred after committing various misconduct in six client matters, including continuing to represent clients while suspended.

1.16:230   Withdrawal to Avoid Unlawful Conduct

A lawyer should choose not to represent a client, or should discontinue service if the representation will result in violation of the Rules of Professional Conduct or other law.  KRPC 1.16(a)(1). However, an attorney is not always automatically required to withdraw from representation when criminal allegations are made against a client.  See Kentucky Bar Ass&'n v. Twehues, 849 S.W.2d 549 (Ky. 1993) (a county attorney representing a client in a private divorce matter was not automatically required to withdraw from representation when criminal allegations of child abuse were made against his client).  If a technical violation of ethical rules is unintentional and without motive to gain improper advantage or unethical benefit, the failure to withdraw will not be grounds for disciplinary action. Kentucky Bar Ass&'n v. Twehues, 849 S.W.2d 549 (Ky. 1993).

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

The provisions of KRPC 1.16 do not specifically address the lawyer&'s responsibilitiy or right of withdrawal if his or her client is pursuing legal action for the purpose of harassing or maliciously injuring a person, but Comment [7] allows the lawyer to withdraw from representation where the client insists on a repugnant or imprudent objective.

1.16:300  Permissive Withdrawal

1.16:310   Withdrawal to Undertake Adverse Representation

Except when ordered by a tribunal to continue services, a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client.  KRPC 1.16(b).  The lawyer is responsible for informing the client of his or her desire to withdraw.  Leadingham v. Kentucky Bar Ass&'n, 44 S.W.3d 374 (Ky. 2001); Kentucky Bar Ass&'n v. Bazzell, 936 S.W.2d 769 (Ky. 1997).

1.16:320   Circumstances Justifying Discretionary Withdrawal

Except when ordered by a tribunal to continue services, a lawyer may withdraw from representing a client if: (1) the client persists in a course of action involving the lawyer&'s services that the lawyer reasonably believes is criminal or fraudulent; (2) the client has used the lawyer&'s services to perpetrate a crime or fraud; (3) the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; (4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer&'s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (6)some other good cause for withdrawal exists.  KRPC 1.16(b)(1)-(6).  A lawyer may not withdraw services or refuse to prepare if he has not received a fee by the first day of trial. KBA E-134 (1976).

1.16:400  Order by Tribunal to Continue Representation

KRPC 1.16(c) provides that when ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. In some case lawyers must request permission to withdraw.  In Kentucky Bar Ass&'n v. Megibow, 957 S.W.2d 727 (Ky. 1997), an attorney was publicly reprimanded for withdrawing from a case before filing a motion to withdraw or receiving an order permitting his withdrawal.

Whether a client can discharge appointed counsel may depend on applicable law.  A client seeking to do so should be given a full explanation of the consequences.  These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring the client to represent himself.  KRPC 1.16, Comment [5].  

1.16:500  Mitigating Harm to Client Upon Withdrawal

KRPC 1.16(d) provides that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client&'s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, and surrendering papers and property to which the client is entitled.  See James v. Kentucky Bar Ass&'n, 41 S.W.3d 850 (Ky. 2001).  Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client.  KRPC 1.16, Comment [9].  In this situation, the lawyer may retain papers as security for a fee only to the extent permitted by law. KRPC 1.16, Comment [9].  Whether or not a  lawyer for an organization may have an obligation to the organization after withdrawing or being discharged is beyond the scope of these Rules. KRPC 1.16, Comment [10].

1.16:600  Fees on Termination

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

KRPC 1.16(d) directs the lawyer to refund any advance payment of fee that has not been earned when the lawyer&'s representation is terminated.  A lawyer also may not retain a client&'s file because of a fee dispute.  Rather, upon termination of the representation, the lawyer must turn over the file to the client or to the client&'s new attorney, with the exception of the attorney&'s work product.  Although a lawyer may charge a reasonable fee for the duplication of the documents in the file, a lawyer does not have a statutory lien for the costs of the duplication and should surrender the file even if reimbursement for copying is not forthcoming.  KBA E-395 (1997).

In Kentucky Bar Ass&'n v. Cartee, 84 S.W.3d 460 (Ky. 2002), an attorney was permanently disbarred for her misconduct, which included accepting money from a client to perform legal tasks, but never performing the tasks or returning the money.  See also Kentucky Bar Ass&'n v. Chinn, 84 S.W.3d 458 (Ky. 2002); Kentucky Bar Ass&'n v. Turnbull, 66 S.W.3d 697 (Ky. 2002);  Kentucky Bar Ass&'n v. Scalf, 42 S.W.3d 622 (Ky. 2001); Templeton v. Kentucky Bar Ass&'n, 54 S.W.3d 154 (Ky. 2001); Rampulla v. Kentucky Bar Ass&'n, 17 S.W.3d 895 (Ky. 2000); Kentucky Bar Ass&'n v. Greer, 959 S.W.2d 97 (Ky. 1998); Kentucky Bar Ass&'n v. Starnes, 953 S.W.2d 610 (Ky. 1997); Kentucky Bar Ass&'n v. Devers, 936 S.W.2d 89 (Ky. 1996); Kentucky Bar Ass&'n v. Donsky, 923 S.W.2d 901 (Ky. 1996); Kentucky Bar Ass&'n v. Smith, 913 S.W.2d 317 (Ky. 1996).