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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Michigan Legal Ethics

1.16   Rule 1.16 Declining or Terminating Representation

1.16:100   Comparative Analysis of MI Rule

¥ Primary Michigan References: MI Rule 1.16
¥ Background References: ABA Model Rule 1.16, Other Jurisdictions
¥ Commentary:

1.16:101      Model Rule Comparison

This Michigan Rule is substantially identical to the Model Rule.

1.16:102      Model Code Comparison

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

1.16:200   Mandatory Withdrawal

¥ Primary Michigan References: MI 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
¥ MI Commentary: Dubin and Schwartz MRPC 1.16

The Rule sets forth the circumstances when the lawyer must withdraw from representing the client or must decline to represent a client: (1) if the representation will result in the violation of the Rules of Professional Conduct or other law; (2) if the lawyerÕs physical or mental condition materially impairs the lawyerÕs ability to represent the client; or (3) the lawyer is discharged.

1.16:210      Discharge by Client

The lawyer must withdraw if discharged by the client. In Plunkett & Cooney PC v Capitol Bancorp, Ltd, 212 Mich App 325; 536 NW2d 886 (1995), the Michigan Court of Appeals explained the proper method for resolving fee issues on termination. The court noted that although a client/lawyer relationship is terminable at will, the client is still liable for services rendered until the date of discharge. When a fixed fee agreement is involved, the lawyer may recover in quantum meruit unless there is a specific contradictory term in the contract.

Difficulties may arise if the lawyer believes the client is mentally incompetent and lacks the legal capacity to discharge the lawyer, particularly in the event the discharge may be seriously adverse to the clientÕs interests. Under MRPC 1.14, the lawyer should make special effort to help the client consider the consequences of the discharge and, in an extreme case, may need to initiate proceedings for a conservatorship or similar protection of the client.

1.16:220      Incapacity of Lawyer

A lawyer should not continue representation in a matter unless it can be performed competently and promptly. Subject to Subparagraphs (c) and (d), the lawyer must withdraw if the lawyerÕs physical or mental condition impairs the ability to represent the client.

1.16:230      Withdrawal to Avoid Unlawful Conduct

A lawyer ordinarily must withdraw from representation if a client demands that the lawyer engage in conduct that is illegal or violates the MRPC or other law. The lawyer is not obliged to withdraw simply because the client suggests such a course of conduct and does not demand it. Difficulty may be encountered if, under such circumstances, a lawyer is ordered by a tribunal to continue representation and the lawyer must determine whether the reason for the withdrawal can be disclosed under Rule 1.6. See Discussion under that Rule.

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 Michigan References: MI 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
¥ MI Commentary: Dubin and Schwartz MRPC 1.16

1.16:310      Withdrawal to Undertake Adverse Representation

There is no provision in the Rule or in any of the ethics opinions interpreting the Rule which would permit a lawyer to withdraw solely for the purpose of undertaking adverse representation. Even if good cause could be shown for withdrawal, undertaking adverse representation would be problematic under MRPC 1.9(a). See Discussion under 1.9:200 above.

1.16:320      Circumstances Justifying Discretionary Withdrawal

The lawyer may normally withdraw only if the withdrawal can be accomplished without material adverse effect on the interest of the client. Other circumstances permitting optional withdrawal are set forth in the Rule.

One of the most common reasons stated for withdrawal is failure of the client to pay the lawyerÕs fees and incurred costs. It is clear, however, that until withdrawal is formally accomplished in accordance with the Rule, the lawyer is obligated to continue to exert his best efforts to advance the clientÕs legitimate interests with fidelity and diligence. In re Daggs, 384 Mich 729; 187 NW2d 227 (1971).

In a recent Court of Appeals case, Cain v DepÕt of Corrections, 234 Mich App 421; 594 NW2d 514 (1999), the Michigan court considered, for the first time, an analysis of Rule 1.16(b)(5) that continued representation would result in an unreasonable financial burden on the lawyer. The appellate court reversed the trial courtÕs denial of plaintiffÕs counselÕs motion to withdraw on the grounds that to continue the representation would result in an unreasonable financial burden. Counsel had accepted representation on a contingency fee basis hoping to recover money damages and attorney fees in a prisonerÕs rights suit. Although the firm received approximately $50,000.00 in fees as a result of various contempts and sanctions imposed against defendants, it contended that it lost hundreds of thousands of dollars that would otherwise have been earned and that the trial was continuing with no end in sight. Id. at 426. The evidence suggested that the firm had spent over 4,000 billable hours on the litigation which would have been worth approximately $777,000.00 in legal fees if billed at the firmÕs usual rate and that an additional 1,000 hours or more of work would be required before conclusion of the trial. Id. at 430. Because of the posture of the case, it was apparent that plaintiffs had virtually no likelihood of recovering an award of money damages or attorney fees. In permitting counsel to withdraw, the court relied heavily on Smith v R J Reynolds Tobacco Co, 267 NJ Super 62; 630 A2d 820 (1993), based on an identical rule of professional conduct.

In Ambrose v Detroit Edison Co, 65 Mich App 484; 237 NW2d 520 (1975), the court held there was good cause for withdrawal when counsel demonstrated a total lack of communication with the client about choosing between various payment options of a pension plan, and the client irrationally rejected a settlement offer which gave him all the relief he sought in the complaint. The court further held that counsel was entitled to a lien for the quantum meruit value of the services on the settlement eventually accepted by the former client.

1.16:400   Order by Tribunal to Continue Representation

¥ Primary Michigan References: MI 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
¥ MI Commentary: Dubin and Schwartz MRPC 1.16

See Discussion under 1.16:300 above.

1.16:500   Mitigating Harm to Client Upon Withdrawal

¥ Primary Michigan References: MI 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
¥ MI Commentary: Dubin and Schwartz MRPC 1.16

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. The lawyer may retain papers as security for a fee only to the extent permitted by law. See Comment to MRPC 1.16.

In Bye v Ferguson, 138 Mich App 196; 360 NW2d 175 (1984), the Court of Appeals held that a withdrawing attorney must give reasonable notice to the client. There the attorney withdrew on the date of trial when the client failed to show up and had not paid the attorneyÕs bills. The court held that proceeding directly to trial was an abuse of discretion and that even a defaulting client was entitled to notice of the attorneyÕs intent to withdraw.

1.16:600   Fees on Termination

¥ Primary Michigan References: MI 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
¥ MI Commentary: Dubin and Schwartz MRPC 1.16

See Discussion of Plunkett & Cooney, PC v Capitol Bancorp Ltd in 1.16:210 above.

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

A lawyerÕs authority to act on behalf of the client terminates upon discharge by the client. However, the lawyer must take reasonable steps to protect the clientÕs interests upon termination of representation. MRPC 1.16(d), Bye v Ferguson, 138 Mich App 196; 360 NW2d 175 (1984).