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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Maryland Legal Ethics

1.16   Rule 1.16 Declining or Terminating Representation

1.16:100   Comparative Analysis of Maryland Rule

Primary Maryland References: MD Rule 1.16
Background References: ABA Model Rule 1.16, Other Jurisdictions
Commentary:

1.16:101      Model Rule Comparison

Maryland Rule 1.16 is substantively identical to MR 1.16. The comment to Maryland Rule 1.16 is identical to the comment to MR 1.16 except for a few minor stylistic changes.

1.16:102      Model Code Comparison

With regard to paragraph (a), DR 2-109(A) provides 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 a 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) provides for mandatory withdrawal from employment if: 1) harassment, malicious purpose on client's part; 2) anticipated violation of Disciplinary Rule; 3) unreasonable difficulty due to attorney's mental or physical condition; or 4) discharge by the client.

With regard to paragraph (b), DR 2-110(C) in general permits withdrawal regardless of the effect on the client in circumstances substantially to those identified in Maryland Rule 1.16(b). DR 2-110(C)(1)(a) permits withdrawal when the client "[i]nsists upon presenting a claim or defense that is not warranted under existing law." DR 2-110(C)(1)(e) allows withdrawal when the client "[i]nsists, in a matter not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and advice of a lawyer but not prohibited under the Disciplinary Rules.

With regard to paragraph (c), DR 2-110(A)(1) provides: "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 paragraph (d) are substantially identical to DR 2-110(A)(2) and (3).

1.16:200   Mandatory Withdrawal

Primary Maryland References: MD Rule 1.16(a)
Background References: ABA Model Rule 1.16(a), Other Jurisdictions
Commentary: ABA/BNA 31:1001, ALI-LGL 44, Wolfram 9.54

1.16:210      Discharge by Client

An attorney violates Maryland Rule 1.16(a)(3) by continuing to represent a client after being discharged. Attorney Grievance Comm'n v. Kerpelman, 323 Md. 136 (1991).

Upon receipt of notice from a client that the client no longer wishes to be represented by the attorney, an ethical obligation arises to withdraw from any further representation except to take those steps necessary to avoid prejudicing the client's rights in accomplishing the withdrawal. MSBA Eth. Op. 87-14 (1987). Therefore, after receiving a discharge notice, the attorney has no authority to settle a case on behalf of that client. Id. Furthermore, an attorney cannot ethically condition withdrawal upon payment of a fee that may be owed. The attorney's remedy for payment lies elsewhere. Id.

1.16:220      Incapacity of Lawyer

An attorney who fails to withdraw from a case even though his addiction to alcohol materially impairs his ability to represent his client violates Maryland Rule 1.16(a)(2). Attorney Grievance Comm'n v. Driscoll, 1996 Md. LEXIS 133 (1996) (unreported).

An attorney should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion. In re Bracey, 89 B.R. 6 (Bankr. D. Md. 1988).

1.16:230      Withdrawal to Avoid Unlawful Conduct

In Attorney Grievance Commission v. Protokowicz, 329 Md. 252 (1993), the attorney's escalating emotional involvement in a divorce action manifested itself in his verbal conduct towards the opposing counsel and party. Although the language used by the attorney was both inappropriate and offensive, the court was unable to find under the circumstances that the attorney's conduct violated Rule 1.16. The Court of Appeals held that emotional involvement in a client's case, although often disadvantageous, is not grounds for mandatory withdrawal under Rule 1.16. 329 Md. at 259.

If representing a client will result in a conflict of interest in violation of Maryland Rule 1.9, then Maryland Rule 1.16(a)(1) mandates that the lawyer must withdraw from the representation. MSBA Eth. Op. 88-6 (1988).

Maryland Rule 1.16 does not necessarily require an attorney to terminate representation of a client in a suit in which the client asserts a malpractice claim against the attorney, provided that the malpractice suit is stayed until the pending suit is concluded and provided that the lawyer complies with Maryland Rule 1.7(b). MSBA Eth. Op. 95-40 (1995). If the malpractice suit is not stayed, however, the malpractice suit would adversely affect the attorney's representation of the client such that, even with the client's consent, the attorney could not fulfill his or her obligations as counsel for the client. Under these circumstances, termination of representation would be required under Maryland Rule 1.16(a)(1). Id.

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

This section has not yet been completed.

1.16:300   Permissive Withdrawal

Primary Maryland References: MD Rule 1.16(b)
Background References: ABA Model Rule 1.16(b), Other Jurisdictions
Commentary: ABA/BNA 31:1101, ALI-LGL 44, Wolfram 9.5.3

1.16:310      Withdrawal to Undertake Adverse Representation

This section has not yet been completed.

1.16:320      Circumstances Justifying Discretionary Withdrawal

This section has not yet been completed.

1.16:400   Order by Tribunal to Continue Representation

Primary Maryland References: MD Rule 1.16(c)
Background References: ABA Model Rule 1.16(c), Other Jurisdictions
Commentary: ABA/BNA 31:1101, ALI-LGL 44, Wolfram 9.5.1

There are no reported cases or Ethics Opinions on this particular topic.

1.16:500   Mitigating Harm to Client Upon Withdrawal

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

A termination of the attorney-client relationship by the attorney, without communicating it to the client, is a violation of Maryland Rule 1.16(d). Attorney Grievance Comm'n v. Dietz, 331 Md. 637 (1993).

When an attorney is suspended or disbarred, the attorney is ethically obligated, pursuant to Maryland Rule 1.16(d), to notify clients of his withdrawal from their representation. Attorney Grievance Comm'n v. James, 340 Md. 318 (1995).

Although an insurer's contractual duty to continue defending an insured may terminate at some point during the case because of changed circumstances, an attorney may nevertheless have an ethical obligation to continue representation pursuant to Maryland Rule 1.16. Baltimore Gas & Elec. Co. v. Commercial Union Ins., 113 Md. App. 540 (1997). In Commercial Union Ins., because the insurer's contractual obligation to defend terminated on the eve of trial, the attorney (originally provided by the insurer) may have been ethically obligated to continue defending the insured pursuant to Maryland Rule 1.16, because terminating representation on the eve of trial would have a material adverse effect on the interest of the client. Id. at 576.

In the absence of a contractual agreement between the client and the attorney to the contrary, all documents are the property of the client and must be returned to the client upon termination of the attorney-client relationship. MSBA Eth. Op. 89-11 (1989). However, a lawyer may retain papers relating to the client to the extent permitted by other law (i.e., retaining lien and statutory attorney's lien). Id.

An attorney has no ethical duty to replace lost documents when (1) the client discharges the attorney, (2) does not ask for the attorney's help in replacing the documents, and (3) will not cooperate in the attorney's effort to replace the documents. MSBA Eth. Op. 97-15 (1997).

1.16:600   Fees on Termination

Primary Maryland References: MD 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 43, 52, Wolfram 9.5

Maryland Rule 1.16(d) requires that unearned advance fees be returned to the client immediately upon the termination of the lawyer's representation. In re Printing Dimensions, Inc., 153 B.R. 715 (Bankr. D. Md. 1993).

Failure to return documents and monies to the client upon discharge is a violation of Maryland Rule 1.16(d). Attorney Grievance Comm'n v. Milliken, 348 Md. 486 (1998) (holding that an attorney violated Maryland Rule 1.16 when he failed to return unearned fees to the client); Attorney Grievance Comm'n v. Driscoll, 1996 Md. LEXIS 133 (1996) (unreported); Attorney Grievance Comm'n v. David, 331 Md. 317 (1993); Attorney Grievance Comm'n v. Kerpelman, 323 Md. 136 (1991). However, when a lawyer is owed fees for services performed for a former client, that lawyer may assert (1) a retaining lien on client papers and/or (2) a charging lien on a proceeding or judgment or award. The common law retaining lien (e.g. Ashman v. Schecter, 196 Md. 168, 76 A.2d 139 (1950)) is enforceable under Maryland Rule 2-652(a); Maryland's statutory charging lien (Md. Code Ann., Bus. Occ. & Prof. 10-501 (1997)) is enforceable under Maryland Rule 2-652(b). A lawyer's right to assert a retaining lien over documents is limited by that lawyer's obligation to avoid prejudicing a former client.

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

Maryland Rule 1.16 provides that a lawyer shall not represent a client after the lawyer is discharged. As a consequence, without the former client's consent, the lawyer has no right to issue subpoenas for any lost documents, since the lawyer is no longer the lawyer of record. MSBA Eth. Op. 97-15 (1997).

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