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Delaware Legal Ethics
Rule 1.16 Declining or Terminating Representation
1.16:100 Comparative Analysis of the Delaware Rule
Model Rule 1.16 and DLRPC Rule 1.16 have identical language with respect to the Rule itself. However, DLRPC Rule 1.16 also contains an interpretive guideline for residential real estate transactions which has no counterpart in the Model Rules. This interpretive guideline mandates that a lawyer, before making representations to a buyer or other party to a real estate transaction, must inform the parties that they have a right to have their own lawyer. Also, the lawyer must advise the parties of the possibility of a conflict of interest if the parties would have a dispute. The guidelines give an example of “possibly conflicting” interests where the lawyer previously represented the seller, the real estate agent, or the lender.
Unless a lawyer has been selected by a party to the real estate transaction, the lawyer cannot portray the party as his client, nor can the lawyer seek fees for services rendered. A lawyer not selected by a party to the transaction may not seek payment for services from that party except for fees for a document prepared for settlement, or title insurance, provided this is a condition of the loan. Also, a lawyer not selected to represent a party in the transaction may not represent the buyer or mortgager unless this representation is a term or condition of the real estate transaction.
Finally, the lawyer must furnish the buyers and mortgagers with information about the lawyer’s interest in the matter so that these parties can make an informed decision about whether to retain a different lawyer.
Both DLRPC Rule 1.16(a)(1) and DR 2-110(B)(2) compel a lawyer to withdraw from representation if the representation will violate the disciplinary rules. Also, DR 2-110(B)(1) mandates withdrawal if the lawyer knows that the action is being brought for the purpose of harassment of another person. Though this is not specifically stated in DLRPC Rule 1.16, it is implied in that bringing an action maliciously would result in the violation of laws which prohibit the filing of suit for the purpose of harassment, which would bring a lawyer in violation of DLRPC Rule 1.16(a)(1). See e.g, Del. Super. Ct. R. Civ. P. 11.
Also, DLRPC Rule 1.16(a)(2) is similar to DR 2-110(B)(3), in that both rules mandate withdrawal if the lawyer’s mental or physical condition would affect the lawyer’s ability to effectively represent the client. However, under DLRPC Rule 1.16(a)(2), this mental condition must “materially impair the lawyer’s ability to represent the client,” where as under DR 2-110(B)(3), the condition must make it “unreasonably difficult” for the lawyer to represent the client.
DR 2-110(C)(4) has a discretionary withdrawal provision not present in DLRPC Rule 1.16 which allows a lawyer to withdraw if “his mental or physical condition renders it difficult for him to carry out the employment effectively.”
Both DLRPC Rule 1.16(a)(3) and DR 2-110(B)(4) mandate withdrawal if the client discharges the lawyer.
DLRPC Rule 1.16(b)(1) gives the lawyer more freedom to withdraw than the Model Code, allowing a lawyer to withdraw if this “can be accomplished without material adverse effect on the interests of the client.” There is no equivalent Model Code provision.
DLRPC Rule 1.16(b)(2) allows discretionary withdraw if the client “persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.” The following Model Code provisions allow a lawyer to withdraw if the client wants to pursue illegal conduct or engage in illegal actions: DR 2-110(C)(1)(b), where the client insists that the lawyer engage in this conduct; and DR 2-110(C)(1)(c), where it is likely that the representation will result in conduct which is contrary to the disciplinary rules. DLRPC Rule 1.16(b)(3) goes even further than the Model Code and allows a lawyer to withdraw if the client has used the lawyer’s services in the past to engage in illegal conduct.
DLRPC Rule 1.16(b)(4) allows a lawyer to withdraw if the action that the client wants to take is repugnant to the lawyer or the lawyer has a fundamental disagreement with this conduct. DR 2-110(C)(1)(e) allows a lawyer to withdraw if the client insists on acting contrary to the lawyer’s advice.
DR 2-110(C)(1)(f) allows a lawyer to withdraw if the client has intentionally disregarded a fee agreement, but DLRPC Rule 1.16(b)(5) will not let a lawyer withdraw for nonpayment of fees unless the lawyer has given the client reasonable warning that the lawyer will withdraw if the fee is not paid.
Both DR 2-110(C)(1)(d) and DLRPC Rule 1.16(b)(6) allow a lawyer to withdraw if the client makes it difficult for the lawyer to represent the client. Finally, DLRPC Rule 1.16(b)(7) contains a catchall provision allowing a lawyer to withdraw for “other good cause.” There is no corresponding Model Code catchall provision, although DR 2-110(C)(5) permits a lawyer to withdraw if the client consents. DLRPC Rule 1.16 does not require this consent.
Under both the Model Code and the DLRPC, the lawyer may not withdraw without permission of the court. DR 2-110(B), DLRPC Rule 1.16(c). Also, under both the Model Code and the DLRPC, the lawyer must take steps to mitigate the harm to the client upon withdrawal, and both rules spell out what needs to be done in order to mitigate harm to the client. DR 2-110(A)(2), DLRPC Rule 1.16(d). Additionally, both the Model Code and the DLRPC require the repayment of advance fees upon withdraw. DR 2-110(A)(3), DLRPC Rule 1.16(d).
1.16:200 Mandatory Withdrawal
When a client has discharged a lawyer, the lawyer must withdraw from the representation and transfer the file to the new attorney. In Re Higgins, 565 A.2d 901, 905 (Del. 1989). If the attorney fails to withdraw after the client has discharged the lawyer, the lawyer violates DLRPC Rule 1.16(a)(3). Id. at 905. An attorney was disciplined for violating 1.16(a)(3) when the lawyer did not promptly withdraw when discharged by the client. In Re Tos, 576 A.2d 607, 614 (Del. 1990). In In Re Tos, the attorney was disciplined when he took two and a half months to withdraw when discharged and turn over the file to the new attorney. Id. The court, in Estate of Sheridan, relied on DLRPC Rule 1.16 in deciding that an attorney was unable to collect a fee for time expended after he was discharged. Estate of Sheridan, No. 109526, 1997 Del. Ch. WL 240963, at *2 (April 15, 1997). The court made this determination since the lawyer was notified that the client had hired new counsel, even though the Register of Wills did not reflect this change for months. Id.
The general rule is that the client has the right to terminate the lawyer for any reason. Webb v. Harleysville Ins. Co., No. 92C-01-017 1995 Del. Super. Ct. WL 716757, at *3 (Oct. 23, 1995). Therefore, an attorney is not permitted to make a fee agreement with a client that is not revocable by the client. Id. However, there are limitations on a client’s right to discharge his attorney in certain situations. Shephard v. Reinhoehl, No. C.A. 99C-06-030-JTV, 2000 Del. Super. Ct. WL 973079, at *1 (March 29, 2000). In an insurance defense situation where the policy gave the insurance company the right to choose the attorney, the insurance policy holder’s right to discharge his attorney was limited to situations where there was a conflict of interest. Id. at *2. Also, in a class action, a client does not have the right to discharge his lawyer. In Re Winchell’s Donut Houses, 1988 Del. Ch. WL 135503, at *2 (Dec. 12, 1988).
A lawyer must withdraw if “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.” DLRPC Rule 1.16(a)(2).
If an attorney should have withdrawn from representing a client because the representation causes a violation of another disciplinary rule, the attorney can be disciplined for violating DLRPC Rule 1.16(a)(1). Estate of Waters, 647 A.2d 1091, 1098 (Del. 1994). Therefore, a lawyer was disciplined in In Re Hull, when a conflict of interest occurred and the lawyer did not withdraw. In Re Hull, No. 443 (Del. 2001). Similarly, a lawyer was disciplined when a conflict of interest arose and resulted in a violation of DLRPC Rule 1.7 and DLRPC Rule 1.9, since there were conflicts with current and past clients. Del. Ethics Opinion 10 (1999). The lawyer was disciplined for violating DLRPC Rule 1.16 for failure to withdraw when a conflict arose which caused the violation of other disciplinary rules. Id. A lawyer was found not to be in violation of DLRPC Rule 1.16(a)(1) when the court determined that though the attorney was representing a client in a matter against a former client, there was no DLRPC Rule 1.16(a)(1) violation for failure to withdraw since the matters were not related so as to implicate DLRPC Rule 1.9 or DLRPC Rule 1.7. State v. Outten, No. IN-92-01-1144 to IN-92-01-1158, 1992 Del. Super. Ct. WL 390660, at *5 (Dec. 1, 1992). However, the court in Del-Chapel v. Ruger held that an attorney had to withdraw when he represented a former client in a “substantially related” matter in which the former client’s interest wase adverse to another client, thus implicating DLRPC Rule1.9. Del-Chapel v. Ruger, No. 16942, 2000 Del. Ch. WL 488562, at *2 (April 17, 2000).
A lawyer must withdraw if the lawyer is “likely to become a necessary witness” pursuant to DLRPC Rule 3.7, but the court in Bailey v. State expressed the opinion that while a public defender may not represent a client for fear of becoming a witness pursuant to Rule 3.7, he may still assist the new lawyer with arguing that the defendant was incompetent to withdraw an ineffective assistance motion. Bailey v. State, 518 A.2d 91 (Table), No. 229, 1986 WL 17995, at *3 (Oct. 29, 1986), citing the Delaware State Bar Association Committee on Professional Ethics Opinion 1986-2. Similarly, the court in Estate of Waters held that the lawyer should have withdrawn from the representation pursuant to DLRPC Rule1.16(a)(1), when it was clear that the lawyer was a necessary witness to a will contest. Estate of Waters, 647 A.2d 1091, 1098 (Del. 1994).
A complaint filed by a client against his lawyer, with no substantiation, does not mandate withdrawal. Woods v. State, 687 A.2d 197 (Table) No. 166, 1996 Del. WL 666009 (Nov. 12, 1996).
Nor does a lawyer have to withdraw when the lawyer believes that the client is going to commit perjury. Riley v. State, 867 A.2d 902 (Table), No. 259, 2004 Del. WL 2850093 (Oct. 20, 2004).
DLRPC Rule 1.16(a)(1) compels withdrawal if the representation will result in a violation of the law. Various Delaware courts have adopted versions of Rule 11 which mandate that when a lawyer signs a pleading or motion, the lawyer is certifying that the pleading is not being brought for the purpose of harassment. See Del. Super. Ct. R. Civ. P. 11, Del. Ch. R. Civ. P. 11, De. Fam. Ct. R. Civ. P. 11, De. Ct. Com. Pl. R. Civ. P. 11.
1.16:300 Permissive Withdrawal
There is no relevant information available in Delaware.
In Red Dog v. State, where the client, against the lawyer’s advice, chose not to appeal but to accept the death penalty, the court, citing DLRPC Rule 1.16(b)(3), stated that “[a]n attorney who is unable in good conscience to represent a client intent upon achieving such an objective, or to whom the death penalty is ‘repugnant’ may seek leave to withdraw from the representation if the client’s interests would not be prejudiced thereby.” Red Dog v. State, 625 A.2d 245 (Del. 1993).
Pursuant to DLRPC Rule 1.16(b), a lawyer may ask the court’s permission to withdraw from the representation if a client insists on giving perjured testimony. Shockley v. State, 565 A.2d 1373, 1378 (Del. 1989).
A lawyer may withdrawal if after reviewing the record, the lawyer determines that the appeal has no merit. Smack v. State, 820 A.2d 373 (Table), No. 174, 2003 WL 99069, at *1 (Jan. 8, 2003); Simpson v. State, 741 A.2d 17 (Table), No. 429, 1999 WL 636630, at *1 (July 30, 1999). However, in order for the court to allow the attorney to withdraw for lack of merit, the court must determine that the attorney performed a “conscientious examination of the record and the law for claims that could arguably support the appeal” and the court must itself determine that there is no merit to the appeal. Blanchard v. State, 2001 WL 487916, at *1 (May 4, 2001).
Nonpayment of fees is a valid justification for asking the court’s permission to withdraw. Getty v. Park Oil, No. Civ.A. 5459, 1979 Del. Ch. WL 178487, at *1 (June 1, 1979).
1.16:400 Order by Tribunal to Continue Representation
The court will order a lawyer to continue representing a client if the court determines that the lawyer’s motion to withdraw has been filed too late. Petition of Briley, 612 A.2d 157 (Table), No. 371, 1992 WL 219070, at *2 (Aug. 21, 1992). In Petition of Briley, the lawyer’s motion to withdraw was filed too late since the case had been pending for two years and the lawyer’s reason for withdrawal was the client’s health, which had not changed. Id. In Guerke v. Guerke, withdrawal was also denied when a client decided right before trial that he wanted to represent himself. The court concluded that this self-representation in a child support matter would result “in a free for all with the Court left to control the parties” since the litigation was approaching. Guerke v. Guerke, No. CK89-4646, 1994 Del. Fam. Ct. WL 831983, at *2 (June 1, 1994).
In State v. Smith, the court ordered a lawyer to continue representation of a client even though the court expressed sympathy in that the client was difficult. Since the lawyer was qualified to represent this client, and his background made him a good lawyer to represent the client, withdrawal was denied. State v. Smith, 1993 WL 1617680, at *3 (Dec. 3, 1993).
In Mateson v. Mateson, the court denied a lawyer’s motion to withdraw when no substitute lawyer was prepared to take the case and the client, a corporation, was unable to appear pro se. Mateson v. Mateson, No. C.A. 14730, 1997 Del. Ch. WL 225752, at *1 (April 29, 1997).
In the criminal matter of State v. Lindsay, the court would not allow an attorney to withdraw when the defendant desired to withdraw a guilty plea, because a defendant is entitled to an attorney at every stage. State v. Lindsay, 2002 Del. Sup. Ct. WL 1463557, at *1 (May 21, 2002).
In a matter to terminate parental rights, where the court appoints a lawyer for an indigent parent, the lawyer may not withdraw until the lawyer tells the client about the right to appeal, files an appeal if the client so wishes, and prepares everything that needs to be filed for the appeal. Farley v. Dept of Services for Children, Youth and Their Families, 765 A.2d 951 (Table), No. 368, 2000 Del. WL 1862231, at *1 (Dec. 15, 2000). Only then, if there is good cause, may the attorney withdraw. Id.
A criminal defense attorney who does not docket an appeal, where the attorney believes the appeal is without merit, must tell the client that the appeal lacks merit and make a motion to withdraw, for the attorney to be permitted to withdraw. Erb v. State, 332 A.2d 137, 139 (Del. 1974).
Courts help to insure that a client’s interest is protected through the use of the “hot potato rule.” The “hot potato rule” prohibits a lawyer from dropping a small client in order to represent a larger and more lucrative one. Unanue v. Unanue, No. Civ.A. 204-N, 2004 Del. Ch. WL 602096 (Mar. 25, 2004).
1.16:500 Mitigating Harm to Client Upon Withdrawal
Pursuant to DLRPC Rule 1.16(d), a withdrawing lawyer must “take steps to the extent reasonably practicable to protect a client’s interests…” An attorney was disciplined for violating DLRPC Rule 1.16(d) when the lawyer did not furnish the replacement lawyer with the case file. In Re Higgins, 565 A.2d 901, 904-905 (Del. 1989); In Re Carmine, 559 A.2d 248, 251 (Del. 1989), reinstatement granted by 599 A.2d 412 (Table) (Del. 1991). A lawyer violated DLRPC Rule 1.16(d) when he failed to turn over the file for two months, after repeated requests from the replacement lawyer. In Re Tos, 576 A.2d 607, 614 (Del. 1990). Similarly, a lawyer was disciplined for failing to give the file to the new attorney until months after receiving a complaint from disciplinary counsel. Board Case No. 35 (Oct. 21, 2001). A lawyer also was disciplined for violating DLRPC Rule 1.16(d) when the lawyer, after being discharged by the client, failed to return documents that the client had given to the lawyer for the representation. Board Case No. 2 (April 17, 1991).
Lawyers have been disciplined for failure to take the proper steps required to protect the client’s interests upon withdrawal. E.g, Board Case No. 52 (Jan. 17, 2002). A lawyer was disciplined for violating DLRPC Rule 1.16(d) when the attorney’s letter withdrawing from the representation did not warn the client of the urgency of obtaining new representation, nor did the letter inform the client of important deadlines. Id. A lawyer violated DLRPC Rule 1.16(d) when the lawyer did not cooperate with the newly hired lawyer for the case, did not provide the new lawyer with information about the case, and disposed of a check that the client had signed without telling the client or the new lawyer that he was doing this. Board Case No. 35 (Oct. 12, 2001). Other lawyers have been disciplined for not cooperating with the newly hired lawyer. In Re McCann, No. 79 (Sept. 29, 1997); Board Case No. 97 (Aug. 14, 1996).
In the case of In Re Solomon, the attorney was disciplined for violating DLRPC Rule 1.16(b) when she abandoned “the representation…by failing to comply with the Family Court’s outstanding orders requiring the completion of a QDRO [Qualified Domestic Relations Order], and without resolving outstanding property division matters.” In Re Solomon, 745 A.2d 874, 885 (Del. 1999).
A lawyer violated DLRPC Rule 1.16(d) when, after the client disregarded the lawyer’s advice to accept an agreement offer and discharged the lawyer, the lawyer wrote a letter to the other party in the agreement portraying his client’s position as one taken in bad faith. Board Case No. 65 (May 26, 1992).
A lawyer violated DLRPC Rule 1.16(d) when the lawyer volunteered to file a pro se appeal for the client but failed to do this in a timely fashion. Board Case No. 24 (Dec. 6, 2002).
Sometimes a court, in permitting a lawyer to withdraw, imposes conditions to mitigate the harm to the client. In Getty v. Park Oil, the court permitted the lawyer to withdraw, as long as the lawyer notified each of the defendants he represented and the lawyer sent a Party Not Represented by an Attorney notice to each of the defendants. Getty v. Park Oil, No. Civ.A. 5459, 1979 Del. Ch. WL 178487, at *1 (June 1, 1979). In Bailey v. State, the court spelled out how the public defender should fulfill the DLRPC Rule 1.16 duties to mitigate harm to the client after withdrawal, such as providing the new lawyer with all factual developments, and any legal research which had been completed that would help the new lawyer. Bailey v. State, 518 A.2d 91 (Table), No. 292 1986 Del. WL 17995 (Oct. 29, 1986).
1.16:600 Fees on Termination
A lawyer will be disciplined for violating DLRPC Rule 1.16(d) if, after the end of the representation, the lawyer fails to return an advanced fee paid by the client. In Re Solomon, 745 A.2d 874, 882 (Del. 1999); In Re Tos, 576 A.2d 607, 614 (Del. 1990); In Re McCoy, 767 A.2d 191, 193 (Del. 2001); In Re Motter, No. 515 (Del. 2005). The attorney, in the matter of In Re Rich, violated DLRPC Rule 1.16(d) when he never returned advanced fees to clients for work that the attorney never performed. In Re Rich, 559 A.2d 1251, 1254 (Del. 1989).
A lawyer will also be disciplined for not returning advanced fees, in a timely fashion, after the end of the representation. Board Case No. 1014 (March 28, 1988).
After the death of a client, the attorney/client relationship has ended and the attorney no longer has the authority to act for the client. Hoffman v. Cohen, 538 A.2d 1096, 1101 (Del. 1988).