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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Arkansas Legal Ethics

1.16   Rule 1.16 Declining or Terminating Representation

1.16:100   Comparative Analysis of Arkansas Rule

1.16:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

1.16:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

1.16:200   Mandatory Withdrawal

1.16:210      Discharge by Client

An integral part of an attorney-client relationship, implied by law, is that the client retains the right to terminate the relationship at any time and for any reason. Sikes v. Segars, 266 Ark. 654, 587 S.W. 2d 554 (1979) (client discharged attorney 18 days before trial).

A client may have cause to discharge an attorney, cause that is manifested in such factors as incompetence, failure to carry out the client's wishes, unreasonable and excessive delays in handling the representation, or a failure to keep the client informed. The attorney who is discharged for cause has no claim under the attorney's lien statute, see Williams v. Ashley, 319 Ark. 197, 890 S.W. 2d 260 (1995) (client was unable to communicate with attorney), but does have a claim under breach of contract for the reasonable value of the services performed. Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993). Arguably the recovery should be limited to the amount by which the services performed inured to the benefit of the client and would be usable by the successor attorney. Id. at page 369, 849 S.W. 2d at 942 (J. Dudley, dissenting). See Linda Ann Reid, Note, Determining the Fee of an Attorney Discharged "For Cause", 47 ARK. L. REV. 725, 738-739 (1994).

1.16:220      Incapacity of Lawyer

Arkansas has no case law or authority on this topic.

1.16:230      Withdrawal to Avoid Unlawful Conduct

Arkansas has no case law or authority on this topic.

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

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1.16:300   Permissive Withdrawal

1.16:310      Withdrawal to Undertake Adverse Representation

Arkansas has no case law or authority on this topic.

1.16:320      Circumstances Justifying Discretionary Withdrawal

AR Rule 1.16(b)(4) permits an attorney to withdraw from representation if, after appropriate warning, the client fails to carry out obligations concerning fees or other aspects of the representation. Rush v. Fieldcrest Cannon, Inc., 326 Ark. 849, 934 S.W. 2d 512 (1996) (attorney permitted to withdraw when client manifested hostility toward attorney and his representation). However, the payment of partial fees may place the attorney under some duty to protect the client. See McDuffie v. State, 307 Ark. 518, 826 S.W.2d 809 (1992) (attorney who accepted 70% of retainer from a criminal defendant had an obligation to prevent a default in the appellate process by timely filing a notice of appeal).

1.16:400   Order by Tribunal to Continue Representation

The substantive grounds for withdrawal, on either a mandatory or a permissive basis, are set forth in AR Rule 1.16. The procedural standards for withdrawal are incorporated into Ark. R. Civ. P. 64(b): "A lawyer may not withdraw from any proceeding or from representation of any party to a proceeding without permission of the court in which the proceeding is pending. Permission to withdraw may be granted for good cause shown if counsel seeking permission presents a motion therefor to the court showing he (1) has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel; (2) has delivered or stands ready to tender to the client all papers and property to which the client is entitled; and (3) has refunded any unearned fee or part of a fee paid in advance, or stands ready to tender such a refund upon being permitted to withdraw." Whether an attorney who withdraws may claim attorney fees from the client under the fee agreement may depend upon whether the withdrawal is categorized as mandatory or permissive and whether the reason for withdrawal rests upon the attorney or the client.

As both rules indicate, the approval of the court is essential. The approval depends upon an evaluation of a combination of factors -- the time of the request, the nature of the case, the type of the relationship, the reasons for withdrawal, the attorney's compliance with the rules. The attorney should not reveal the precise ethical reasons for seeking to withdraw, but should simply state "professional considerations require termination". Comment [3].

1.16:500   Mitigating Harm to Client Upon Withdrawal

Notice to the client before withdrawal is necessary to protect the client's interests. See Diebold v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987). If the attorney withdraws, the court is not permitted to strike all the pleadings filed by the attorney. Turner v. Bailey, 271 Ark. 215, 607 S.W.2d 674 (1980). Withdrawal without proper protection of the interests of the client may provide a basis to set aside a judgment entered against the client. Jones-Blair Co. v. Hammett, 326 Ark. 74, 990 S.W. 2d 335 (1996) (attorney permitted to withdraw on day of trial).

An attorney has a right to withdraw when the client consents, provided the rights of others and the administration of justice are not affected. Norton v. Taylor, 299 Ark. 218, 772 S.W.2d 316 (1989); Lessenberry v. Adkisson, 255 Ark. 285, 499 S.W.2d 835 (1973). In seeking permission from the trial court, the attorney must submit a petition containing a statement of the reasons for withdrawal. Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979).

If a criminal defendant has retained counsel, the trial court should not permit the attorney of record to withdraw until (a) new counsel has been retained; (b) counsel has been appointed after a showing of indigency; or (c) the defendant makes a voluntary waiver of the right of counsel. Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986).

Arkansas Rule of Appellate Procedure 16 states: "Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause." The attorney who feels the appeal has no merit should obtain permission from the trial court to withdraw before filing a notice of appeal.

Rule 4-3(j) of the Rules of the Supreme Court governs requests to withdraw by attorneys for criminal defendants after the notice of appeal has been filed. If the attorney does not follow the prescribed procedure, he remains responsible for the duties imposed upon him and owed to his client. Ellis v. State, 276 Ark. 560, 637 S.W.2d 588 (1982). Counsel, whether retained or appointed, cannot simply file a notice of appeal and then sit idly by. Surridge v. State, 276 Ark. 596, 637 S.W.2d 597 (1982). For counsel of record before the Supreme Court to withdraw, he must show that no prejudice will result to his client. Walker v. State, 274 Ark. 325, 624 S.W.2d 439 (1981).

1.16:600   Fees on Termination

If the client fires the attorney without cause, the attorney has a cause of action for breach of contract. If the attorney was to be paid on a fixed fee basis, the attorney is entitled to either the agreed-upon compensation minus any expense that would have been saved, Bockman v. Rorex, 212 Ark. 948, 208 S.W. 2d 991 (1948), or a quantum meruit recovery. Carter v. Jacoway, 241 Ark. 581, 408 S.W. 2d 875 (1966). If the attorney was to be paid on a contingency fee basis and is improperly discharged, the attorney has a cause of action, but the damages remain uncertain.

Traditionally the attorney would claim the agreed-upon share of the ultimate recovery, minus any expenses saved. Berry v. Nichols, 227 Ark. 297, 298 S.W.2d 40 (1957). Such a recovery would mean that the client might have to pay both the first attorney and the second attorney a percentage of the recovery. Finding that such an outcome would improperly interfere with and hamper the client's right to select and discharge an attorney, the Court concluded that the first attorney would be limited to a reasonable fee for the services performed based on a quantum meruit theory. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987). See Louis A. Etoch, Note, The Value of a Discharge Attorney's Contingent Fee Contract in Arkansas, 42 ARK. L. REV. 549 (1989). The legislature responded by amending Ar. Code 16-22-301 and expressly overriding the Goodman decision. The statute may violate the express separation of powers doctrine of the Arkansas Constitution and interfere with the Supreme Court's power to regulate the legal profession under Amendment 28. See L. Scott Stafford, Where's My Percentage of the Recovery? Problems in Collecting a Contingent Legal Fee in Arkansas, ARKANSAS LAWYER (January 1992) 16. The Supreme Court has not resolved the issue. See Lancaster v. Fitzhugh, 310 Ark. 590, 594, 839 S.W.2d 192, 194 (1992): "The General Assembly, by repeating its statement in the lien law that an attorney-client contract governs the attorney's right to a fee, has not altered the common law." See Howard W. Brill, THE ARKANSAS LAW OF DAMAGES 17-7 (3rd ed. 1996).

If the client settles a claim without consulting with the attorney, the attorney is entitled to a fee and may claim against the client or against the parties to the settlement under the lien statute. Jarboe v. Hicks, 281 Ark. 21, 660 S.W.2d 930 (1983). See 1.8:1130. The recovery against the client is the agreed-upon compensation. Lockley v. Easley, 302 Ark. 13, 786 S.W.2d 573 (1990). The recovery against the other parties is reasonable compensation.

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

Arkansas has no case law or authority on this topic.