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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


New Jersey Legal Ethics

1.16   Rule 1.16 Declining or Terminating Representation

1.16:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 1.16
Background References: ABA Model Rule 1.16, Other Jurisdictions
Commentary:
NJ Commentary:

1.16:101      Model Rule Comparison

The New Jersey Supreme Court adopted paragraphs (a), (b) and (d) of the ABA Model Rule 1.16. Paragraph (c) of RPC 1.16 was revised from the Model Rule to make clear that an attorney is to continue a representation in such cases when required by rule or ordered by a tribunal, even though the requisite good cause for terminating the representation is present. The Model Rule 1.16(c) refers only to “tribunal” and not “rule.”

1.16:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

1.16:200   Mandatory Withdrawal

Primary New Jersey References: NJ 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
NJ Commentary:

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

1.16:210      Discharge by Client

A lawyer who is discharged from a representation by the client must withdraw from the matter pursuant to RPC 1.16(a)(3). A client may dismiss his or her attorney at any time, for any reason or for no reason at all. See Cohen v. ROU, 146 N.J. 140, 157 (1996), aff’g as modified 275 N.J. Super. 241, 255 (App. Div. 1994); Dinter v. Sears, Roebuck & Co., 278 N.J. Super. 521, 531 (App. Div.), certif. den. 140 N.J. 329 (1995); In re Estate of Poli, 134 N.J. Super. 222, 226-227 (Cty. Ct. 1975).

An attorney may not enter into an agreement that excessively burdens or restricts the client’s right to dismiss the lawyer. See Cohen, supra, at 160. In Cohen, the New Jersey Supreme Court held that a retainer agreement providing for automatic annual renewal and requiring the client to give six months’ notice of its decision to discharge the attorney (or pay the full annual fee) was excessively burdensome and therefore unenforceable. See id. at 159-160. See Section 16:2-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.16:220      Incapacity of Lawyer

RPC 1.16(a)(2) requires a lawyer who is incapable of handling a matter because of physical or mental illness to decline the representation, or to withdraw from the matter if the representation has already begun. And see Matter of Walton, 134 N.J. 116 (1993), reprimanding an attorney in part because of his failure to withdraw from a representation that may have been impaired by his physical or mental condition. Cf. Matter of Hurwitz, 135 N.J. 181 (1994), requiring an attorney to demonstrate as a condition of reinstatement from suspension that a psychiatrist determine that the attorney is fit to practice law.

The relevant standard is “material impairment” of the lawyer’s ability to represent the client. Note, however, that even in such cases, a physically or mentally disabled attorney must continue the representation if a court order or a rule so directs. RPC 1.16(c). See Section 16:2-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.16:230      Withdrawal to Avoid Unlawful Conduct

RPC 1.16(a) requires an attorney to withdraw when the representation will result in a violation of other sections of the RPCs or other law. RPC 1.2(d), in turn, prohibits an attorney from counseling or assisting a client in illegal, criminal or fraudulent conduct.

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 New Jersey References: NJ 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
NJ Commentary:

RPC 1.16(b) provides for permissive withdrawal as follows:

Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or 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) a 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) other good cause for withdrawal exists.

1.16:310      Withdrawal to Undertake Adverse Representation

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

1.16:320      Circumstances Justifying Discretionary Withdrawal

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

1.16:400   Order by Tribunal to Continue Representation

Primary New Jersey References: NJ 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
NJ Commentary:

Both RPC 1.16(a), requiring withdrawal from certain representations, and RPC 1.16(b), permitting withdrawal under certain circumstances, provide an exception “as stated in paragraph (c).” RPC 1.16(c) reads as follows:

When required to do so by rule or when ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

Thus, a court can order a lawyer to continue representing a client in a matter despite the existence of circumstances that would ordinarily require the lawyer to withdraw from the case, such as a conflict of interest. See Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 219-220 (1988).

If an attorney has good cause for withdrawal from a matter or wishes to withdraw without cause pursuant to RPC 1.16(b), a court has the discretion under RPC 1.16(c) to deny the attorney’s application. See Haines v. Liggett Group Inc., 814 F. Supp. 414, 422 (D.N.J. 1993). See also New Jersey Court R. 1:11-2, requiring leave of court if an attorney wishes to withdraw from a representation after the entry of a plea in a criminal action or after the pretrial conference or the fixing of a trial date, whichever is earlier, in a civil action. Prior to those specified times, an attorney may withdraw from a litigation matter without leave of court upon the client’s consent and the filing of a substitution of attorney. See id. See Section 16:4-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.16:500   Mitigating Harm to Client Upon Withdrawal

Primary New Jersey References: NJ 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
NJ Commentary:

RPC 1.16(d) sets forth the steps an attorney may be required to take to protect the interests of the client upon the termination of a representation:

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, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

A lawyer who fails to take steps to protect his or her client’s interests when terminating a representation is subject to discipline under this rule. See Matter of Grossman, 147 N.J. 462, 463 (1997), disbarring an attorney in part for violating RPC 1.16(d) by “abandoning” clients. See Section 16:5-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.16:600   Fees on Termination

Primary New Jersey References: NJ 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
NJ Commentary: Section 16:3-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000)

While withdrawal without cause is clearly permitted by the RPCs, an attorney who withdraws from a representation without cause after providing services may not be entitled to a fee for those services. See Dinter v. Sears, Roebuck & Co., 278 N.J. Super. 521, 532 (App. Div.), certif. den. 140 N.J. 329 (1995).

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

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