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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Texas Legal Ethics

1.16   Rule 1.16 Declining or Terminating Representation

1.16:100   Comparative Analysis of Texas Rule

• Primary Texas References: TX Rule 1.15
• Background References: ABA Model Rule 1.16, Other Jurisdictions
• Commentary:

1.16:101      Model Rule Comparison

The substance of Texas Rule 1.15, concerning declining or terminating the representation of a client by an attorney, is very similar to ABA Model Rule 1.16. Both the Texas Rule and the ABA Model Rule enumerate circumstances requiring the mandatory, optional, and prohibited declination or termination of an attorney/client relationship. In addition, the Texas rule and the ABA Model rule both provide steps that a lawyer must take to protect a client's interest upon termination of the lawyer's representation of the client.

A.   Mandatory Declination or Termination of Representation

Texas Rule 1.15 and ABA Model Rule 1.16 both generally provide that, except when a lawyer is ordered by a tribunal to continue representing the client, the attorney is required to not undertake representation, or to terminate an existing relationship, if: (1) the representation will result in the violation of the rules of professional conduct (the Texas version specifically mentions the advocate-witness rule as an example) or other law; (2) the lawyer's physical or mental condition impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged by the client.

Despite the similarities between these two rules, there are some textual differences between Texas Rule 1.15 and ABA Model Rule 1.16. Texas Rule 1.15, for example, specifically requires termination of representation if the lawyer's "psychological" condition materially impairs the lawyer's fitness to represent the client. Texas Rules Rule 1.15(a)(2). ABA Model Rule 1.16 does not use the term "psychological," and instead requires a lawyer to terminate the representation of a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. Model Rules Rule 1.16(a)(2).

Another slight textual difference between Texas Rule 1.15 and ABA Model Rule 1.16 is that the Texas rule requires an attorney to terminate representation when the client discharges the attorney with or without good cause. Texas Rule 1.15(a)(3). By contrast, ABA Model Rule 1.16(a)(3) requires termination of representation when the attorney is discharged. There is no mention in the text of the rule that termination of representation is required irrespective of whether the attorney is terminated with or without good cause. However, the comment pertaining to "Discharge" in ABA Model Rule 1.16 makes clear that a client has the right to discharge a lawyer at any time, with or without cause.

In sum, Texas Rule 1.15 and Model Rule 1.16 are very similar in this area.

B.   Optional Declination or Termination of Representation

Like the provisions governing the mandatory declination or termination of representation, Texas Rule 1.15 and ABA Model Rule 1.16 are very similar with respect to a lawyer's optional termination of the representation of a client. Both the Texas rule and the ABA Model rule permit an attorney to terminate representation of a client if (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client has used the lawyer's services to perpetrate a crime or fraud; (3) the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent; (4) the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; (5) 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; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists.

Although the Texas rule and the ABA Model rule are very similar, there are small textual differences between the rules. For instance, Texas Rule 1.15(b)(4) permits an attorney to terminate the representation of a client not only if the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent, but also because the lawyer has a "fundamental disagreement" with the objective that the client insists upon pursuing. In addition, while comment seven to Texas Rule 1.15 and the "Optional Withdrawal" comments to ABA Model Rule 1.16 both note that withdrawal is justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, comment seven to Texas Rule 1.15 explains that "[a] lawyer is not required to discontinue the representation until the lawyer knows the conduct is illegal or is in violation of the [Texas Rule]." There is no corresponding comment to ABA Model Rule 1.16.

C.   Required Steps Lawyer Must Take Upon Termination of Representation

Texas Rule 1.15 and ABA Model Rule 1.16 impose virtually identical requirements on a lawyer in this regard. Both rules require that the lawyer take steps reasonably practicable to protect the client's interests. One difference between Texas Rule 1.15 and ABA Model Rule 1.16 involves the lawyer's retention of the papers of the client. ABA Model Rule 1.16 provides that "[t]he lawyer may retain papers relating to the client to the extent permitted by other law." Texas Rule 1.15 adopts this provision from ABA Model Rule 1.16 and further permits an attorney's retention of the client's papers only "if such retention will not prejudice the client in the subject matter of the representation." Texas Rules Rule 1.15(d).

For a couple of interesting cases considering Texas Rule 1.15 issues, see Plunkett v. State, 883 S.W.2d 349 (Tex. App.—Waco 1994, writ refused ) (observing that if lawyer's services will be used by client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw), and Pena v. State, 932 S.W.2d 31 (Tex. App.—El Paso 1995) (involving appointed counsel and appeal), motion to supplement record denied, 932 S.W.2d 33 (Tex. App.--El Paso 1996).

1.16:102      Model Code Comparison

ABA Model Code DR 2-109 and DR 2-110 regarding a lawyer's acceptance of employment and withdrawal from the representation of a client differ in several respects from Texas Rule 1.15.

A.   Acceptance of the Representation of a Client

Unlike Texas Rule 1.15, ABA Model Code DR 2-109(A)(1) prohibits an attorney from agreeing to represent a client if the lawyer knows or it is obvious that the prospective client is contemplating legal action "merely for the purpose of harassing or maliciously injuring any person." Further, DR 2-109(A)(2) prohibits an attorney's acceptance of employment when the attorney knows or it is obvious that the prospective client intends to present a claim or defense in litigation "that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing of law." Texas Rule 1.15 itself does not explicitly address either of these issues raised by DR 2-109. However, Texas Rule 1.15(a)(1) calls for mandatory withdrawal or refusal to undertake representation (unless ordered by the court otherwise) if the representation will result in violation of the Texas Rules or other law. See, e.g., Texas Rule 3.01 ("Meritorious Claims and Contentions").

B.   Withdrawal From the Representation of a Client

DR 2-110(A), containing the general provisions governing an attorney's withdrawal from employment, and DR 2-110(B), governing a lawyer's mandatory withdrawal from employment, are not significantly different from Texas Rule 1.15. Indeed, DR 2-110(A)(2) and (3), which discuss the steps that an attorney must take to protect the client's interest after withdrawal, are substantially similar to Texas Rule 1.15(d). Likewise, DR 2-110(B), containing mandatory withdrawal provisions, is substantially similar to Texas Rule 1.15.

The ABA Model Code requires the lawyer to withdraw from representing a client if the lawyer knows or it is obvious that the client is bringing the legal action "merely for the purpose of harassing or maliciously injuring any person." ABA Model Code DR 2-110(B)(1). There is no explicit analogue in Texas Rule 1.15. However, Texas Rule 1.15(a)(1) calls for mandatory withdrawal or refusal to undertake representaiton (unless ordered by the court otherwise) if the representation will result in violation of the Tecas Rules or other law. See, e.g., Texas Rule 3.01 ("Meritorious Claims and Contentions").

The more fundamental differences between Texas Rule 1.15 and ABA Model Code DR 2-110 concern the ABA Model Code's provisions governing the permissive withdrawal of an attorney from the representation of a client. See DR 2-110(C). ABA Model Code DR 2-110(C) enumerates a number of situations that permit an attorney to withdraw from representing the client. Unlike Texas Rule 1.15, a basis for permissive withdrawal under DR 2-110(C) does not include whether withdrawal can be accomplished without a potential materially adverse effect on the client.

Moreover, the specific, explicit grounds that permit an attorney to withdraw his representation of a client under the ABA Model Code differ somewhat from those set forth in Texas Rule 1.15. For example, DR 2-110(C)(1)(a) permits an attorney to withdraw from representation of a client if the client "[i]nsists 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." Also, DR 2-110(C)(3) permits an attorney to withdraw his representation of a client if the attorney's "inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal." While these permissive grounds are not specifically provided for in Texas Rule 1.15. Texas Rule 1.15(a)(1) calls for mandatory withdrawal or refusal to undertake representation (unless ordered by the court otherwise) if the representation will result in violation of the Tecas Rules or other law. See, e.g., Texas Rule 3.01 ("Meritorious Claims and Contentions").

Additionally, DR 2-110(C) permits an attorney to withdraw as counsel if his continued employment is likely to violate the Disciplinary Rules (DR 2-110(C)(2)), or if the attorney's mental or physical condition "renders it difficult for him to carry out the employment effectively" (DR 2-110(C)(4)). Texas Rule 1.15 does not explicitly recognize these situations and circumstances as justifying the permissive withdrawal from the representation of a client. Rather, the Texas rule addresses similar circumstances in the section of the rule concerning an attorney's mandatory withdrawal from the representation of a client. See Texas Rule 1.15(a).

1.16:200   Mandatory Withdrawal

• Primary Texas References: TX Rule 1.15(a)
• Background References: ABA Model Rule 1.16(a), Other Jurisdictions
• Commentary: ABA/BNA § 31:1001, ALI-LGL § 44, Wolfram § 9.54

Under the Texas Rules, a lawyer shall decline to represent a client, or where representation has commenced, shall withdraw from the representation — unless ordered to continue representation by a tribunal — if:

The representation will result in a violation of Rule 3.08 regarding a lawyer acting as witness, or other applicable rules of professional conduct or other law;

The lawyer's physical, mental or psychological condition materially impairs the lawyer's fitness to represent the client; or

The lawyer is discharged, with or without good cause.

Texas Rules Rule 1.15(a).

1.16:210      Discharge by Client

A lawyer generally must withdraw from representation of a client if the lawyer is discharged by the client. It does not matter whether the lawyer was discharged with or without good cause. An exception to this principle set forth in Texas Rule 1.15 is triggered if a tribunal orders the lawyer to continue the representation. See Texas Rules Rule 1.15(a)(3) & (c). A discharged lawyer may be entitled to compensation for his services prior to discharge. See, for instance, the discussion at 1.16:600.

1.16:220      Incapacity of Lawyer

A lawyer is required to decline representation or withdraw from ongoing representation if the lawyer's physical, mental or psychological condition materially impairs his or her fitness to represent the client. While technically, the literal letter of Texas Rule 1.15 would appear to create an exception to this requirement when the lawyer is ordered to continue the representation by a tribunal, presumably the instances would be nonexistent (or exceedingly rare) in which a tribunal would order continued representation under such circumstances. See Texas Rules Rule 1.15(a)(2) & (c).

1.16:230      Withdrawal to Avoid Unlawful Conduct

This topic is addressed in 1.6:300. Please also note Texas Rule 1.02(c), which provides that "[a] lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel and represent a client in connection with the making of a good faith effort to determine the validity, scope, meaning or application of the law." See Texas Rules Rule 1.02(c).

Official Comment 8 to Texas Rule 1.02, addressing client misconduct, provides impertinent part as follows:

When a client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer may not reveal the client's wrong doing, except as permitted or required by Rule 1.05. However, the lawyer also must avoid furthering the client's unlawful purpose, for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore, may be required. See Texas Rules Rule 1.15(a)(1).

Texas Rules Rule 1.02 cmt. 8.

Official Comment 7 observes that the "fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity." Texas Rules Rule 1.02 at cmt. 7.

In sum, a lawyer is obligated to withdraw under Texas Rule 1.15(a)(1) where continuing the representation will result in a violation of one or more of the Texas Rules or other law. Permissive withdrawal is addressed in 1.16:300.

1.16:300   Permissive Withdrawal

• Primary Texas References: TX Rule 1.15(b)
• Background References: ABA Model Rule 1.16(b), Other Jurisdictions
• Commentary: ABA/BNA § 31:1101, ALI-LGL § 44, Wolfram § 9.5.3

Unless ordered to continue representation by a tribunal, a lawyer is permitted to withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client. See Texas Rules Rule 1.15(b)(1). Additionally, a lawyer is permitted to withdraw from representation, unless ordered to continue representation by a tribunal, if one or more of the following conditions exists:

The client persists in a course of action involving the lawyer's services that the lawyer believes could be criminal or fraudulent;

The client has used the lawyer's services to perpetrate a crime or fraud;

A client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement;

The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services, including an obligation to pay the lawyer's fee as agreed, and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

Other good cause for withdrawal exists.

Texas Rules Rule 1.15(b).

1.16:310      Withdrawal to Undertake Adverse Representation

The text of Texas Rule 1.06(e) provides in full as follows:

If a lawyer has accepted representation in violation of this Rule, or if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules.

Texas Rules Rule 1.06(e); see also Conoco v. Baskin, 803 S.W.2d 416 (Tex. App.—El Paso 1991, orig. proceeding).

1.16:320      Circumstances Justifying Discretionary Withdrawal

For discussion of this topic, please see 1.16:300.

1.16:400   Order by Tribunal to Continue Representation

• Primary Texas References: TX Rule 1.15(c)
• Background References: ABA Model Rule 1.16(c), Other Jurisdictions
• Commentary: ABA/BNA § 31:1101, ALI-LGL §§ 44, 45, Wolfram § 9.5.1

As discussed elsewhere, Texas Rule 1.15(c) provides that, "[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation." Texas Rules Rule 1.15(c).

1.16:500   Mitigating Harm to Client Upon Withdrawal

• Primary Texas References: TX Rule 1.15(d)
• Background References: ABA Model Rule 1.16(d), Other Jurisdictions
• Commentary: ABA/BNA § 31:1201, ALI-LGL § 44, Wolfram § 9.5.1

As provided in subparagraph (d) to Rule 1.15, "[u]pon 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 payments of fee that has not been earned." Texas Rules Rule 1.15(d). "The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation." Id. As stated in the official comment to Texas Rule 1.15, "[i]n every instance of withdrawal and 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. See paragraph (d)." See Texas Rules Rule 1.15 cmt. 9.

1.16:600   Fees on Termination

• Primary Texas References: TX Rule 1.15(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

Under Texas law, a lawyer who is discharged without cause can recover on the fee contract or for the value of his services, and an attorney who has been discharged with cause can recover the value of his services up to the time of discharge in appropriate cases. See Mandell & Wright v. Thomas, 441 S.W.2d 841 (Tex. 1969); Rocha v. Ahmad, 676 S.W.2d 149 (Tex. App.—San Antonio 1984, writ denied). See also generally Augustson v. Linea Aerea Nacional-Chile S. A. (LAN-Chile), 76 F.3d 658 (5th Cir. 1996) (discussing compensation issues in context of withdrawal). In a bankruptcy case, the court held that counsel for the debtor was entitled to compensation for post-conversion services involving the transfer of records and information to new counsel, where such transfer was necessary. In re Office Products of America, Inc., 136 B.R. 964 (Bankr. W.D. Tex. 1992).

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

As a general rule, a client "has the power to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services . . . ." Texas Rules Rule 1.15 cmt. 4. "Whether a client can discharge an appointed counsel depends on applicable law." Texas Rules Rule 1.15 cmt. 5. "If the client is mentally incompetent, the client may lack the legal capacity to discharge the lawyer . . . ." Texas Rules Rule 1.15 & cmt. 6.

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