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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Florida Legal Ethics

1.16   Rule 1.16 Declining or Terminating Representation

1.16:100   Comparative Analysis of Florida Rule

¥ Primary Florida References: FL Rule 4-1.16
¥ Background References: ABA Model Rule 1.16, Other Jurisdictions
¥ Commentary:

1.16:101      Model Rule Comparison

FL Rule 4-1.16(d) is broader than MR 1.16(d), permitting the lawyer to retain not just papers but "other property" relating to or belonging to the client, to the extent permitted by law. The Florida rule comment adds language stating that, upon termination of representation, a lawyer should refund any advance payment of a fee that has not been earned. This refund suggestion does not preclude the lawyer from retaining a reasonable nonrefundable fee, if the client has agreed such fee would be deemed earned upon commencement of the representation.

1.16:102      Model Code Comparison

DR 2-109 and 2-110 are the counterparts to FL Rule 4-1.16.

1.16:200   Mandatory Withdrawal

¥ Primary Florida References: FL Rule 4-1.16(a)
¥ Background References: ABA Model Rule 1.16(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:1001, ALI-LGL ¤ 32, Wolfram ¤ 9.54

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

1.16:210      Discharge by Client

A lawyer must withdraw when discharged by the client. Florida Bar v. Vining, 721 So. 2d 1164 (Fla. 1998).

1.16:220      Incapacity of Lawyer

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

1.16:230      Withdrawal to Avoid Unlawful Conduct

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

1.16:300   Permissive Withdrawal

¥ Primary Florida References: FL Rule 4-1.16(b)
¥ Background References: ABA Model Rule 1.16(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:1101, ALI-LGL ¤ 32, Wolfram ¤ 9.5.3

Civil Cases

In Fisher v. State, 248 So. 2d 479, 486 (Fla. 1971), the Florida Supreme Court stated the general rule for permissive withdrawal in civil cases: "We hold that in a civil case any attorney of record has the right to terminate the attorney-client relationship and to withdraw as an attorney of record upon due notice to his client and approval by the court. Approval by the court should be rarely withheld and then only upon a determination that to grant said request would interfere with the efficient and proper functioning of the court. The approval of the court of such withdrawal will not relieve the attorney of any civil liability for breach of duty or negligence to his client nor from appropriate disciplinary procedures for such act, if wrongfully done." The court found that the reason for allowing the client the absolute right to discharge an attorney at any time with or without cause is the confidential relation between attorney and client, and the evil that would be engendered by friction and distrust, and further found that this reasoning implies the same right must be accorded to the lawyer, except under unusual circumstances. The only "unusual circumstance" expressly addressed by court was a pending trial date, in which case substitution of counsel could interfere with the efficient functioning of the court.

Fisher has been followed or distinguished by Florida's intermediate appellate courts since its issuance. See Becker & Poliakoff v. King, 642 So. 2d 821 (Fla. 4th DCA 1994)(error to deny law firm's motion to withdraw, where clients refused to cooperate with lawyers or pay for their services, case had never been set for trial, and clients had not complained that withdrawal would cause delay); Martin v. Laidlaw Tree Serv., Inc., 619 So. 2d 435 (Fla. 2d DCA 1993)(error for trial court to dismiss case for "discovery abuses" attributable to client's successive dismissal of two law firms, where opposing party did not object to withdrawal of attorneys; proper course was objection, not motion to dismiss); Larson v. Grossman, 604 So. 2d 1274 (Fla. 4th DCA 1992)(trial court lacks authority to discipline attorney by refusing to allow him to participate in the case; client has right to choose his own counsel); Chauvet v. Estate of Chauvet, 599 So. 2d 740 (Fla. 3d DCA 1992)(error to compel attorney to remain in a civil case against his wishes, except in unusual circumstances); Preddy, Kutner, Hardy v. Kleinschmidt, 498 So. 2d 453 (Fla. 3d DCA 1986)(error to deny law firm's motion to withdraw, where irreconcilable conflicts developed between law firm and client as to handling of case and withdrawal would not substantially delay the case or otherwise interfere with the efficient and proper functioning of the court); Hollis v. F.B. Myers & Bro. Co., 482 So. 2d 568 (Fla. 4th DCA 1986)(plaintiff's attorneys in complex products liability case did not have a right to withdraw due to a fee dispute with co-counsel, where the case had been pending for four years and repeatedly set for trial and continued); and Atlantic Commercial Dev. Corp. v. Nortek, Inc., 403 So. 2d 624 (Fla. 5th DCA 1981)(fact that trial court warned counsel at the outset of their representation that motions to withdraw would be denied did not justify such denial, where there was an absence of unusual circumstances).

Criminal Cases

In a criminal case in which the defense attorney believes that the client's case is meritless, withdrawal is not permitted at the trial level. Even if the lawyer believes the case to be wholly frivolous, the lawyer is obligated to provide a defense and require proof of guilt beyond a reasonable doubt. McCoy v. Court of Appeals, 486 U.S 429, 435, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). The lawyer is, of course, nevertheless bound by ethical considerations against "making dilatory motions, adducing inadmissible or perjured evidence, or advancing frivolous or improper arguments." Id.

However, after conviction, if the defense attorney believes that an appeal would be frivolous, the lawyer may move to withdraw. In the case of indigent criminal defendants, Florida requires adherence to the procedure set forth by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). See State v. Causey, 503 So. 2d 321 (Fla. 1987). The request to withdraw must be accompanied by a brief pointing to anything in the record which might arguably be grounds for reversal. Anders, 386 U.S. at 744. A copy of the brief must be provided to the defendant, who may then file a pro se brief. The court then reviews the entire record and if the appeal is "wholly frivolous," may grant the motion to withdraw and dismiss the appeal, unless prohibited by state law. Id. If the court finds any arguable points which are not frivolous, counsel must be appointed to argue the appeal. Id.

The Anders procedure is appropriate even when meritorious issues are raised as to costs or other minor sentencing errors. In re Appellate Court Response to Anders Briefs, 581 So. 2d 149, 152 (Fla. 1991). However, if any substantial sentencing errors are raised such as the trial court's reliance on insufficient grounds to depart from sentencing guidelines, the Anders procedure is not appropriate. Id.

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

[See 1.16:300]

1.16:400   Order by Tribunal to Continue Representation

¥ Primary Florida References: FL Rule 4-1.16(c)
¥ Background References: ABA Model Rule 1.16(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:1106, ALI-LGL ¤ 32, Wolfram ¤ 9.5.1

In Florida Bar v. Rubin, 549 So. 2d 1000 (Fla. 1989), the Florida Supreme Court held that an attorney representing a criminal defendant could not ignore a court order denying his petition to withdraw, even where the attorney believed the client intended to commit perjury. The fact that the procedure set forth by the district court for dealing with expected perjury was inconsistent with the ethics code was irrelevant; the attorneyÕs good faith reliance on the trial courtÕs order and the district courtÕs mandate would likely be a complete defense to any citation for violations of a disciplinary rule. In Boudreau v. Carlisle, 549 So. 2d 1073 (Fla. 4th DCA 1989), a criminal defendant and his counsel filed separate motions seeking withdrawal of counsel, both of which were denied by the trial court. The attorneyÕs motion contended that because the client had filed a malpractice complaint against the attorney, a conflict was created such that the attorney could not continue the representation without violating FL Rule 4-1.16(a). The court rejected the attorneyÕs contention, citing FL Rule 4-1.16(c) and noting that the trial courtÕs denial of the motion came only after a full hearing. The attorney was not faced with an ethical problem because his continued representation was pursuant to an order of the tribunal. Accord, Jones v. State, 658 So. 2d 122 (Fla. 2d DCA 1995)(defendantÕs filing of a complaint with The Florida Bar against court appointed counsel does not automatically create a conflict situation requiring substitution of counsel).

1.16:500   Mitigating Harm to Client Upon Withdrawal

¥ Primary Florida References: FL Rule 4-1.16(d)
¥ Background References: ABA Model Rule 1.16(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:1201, ALI-LGL ¤ 32, Wolfram ¤ 9.5.1

In Florida Bar v. Kaplan, 576 So. 2d 1318 (Fla. 1991), the court publicly reprimanded an attorney for improper withdrawal. The attorney was retained to represent the client in a personal injury action. The attorney advised the client that the other party did not have automobile insurance and that the client therefore would have to pursue her remedies under the uninsured motorist provisions of her own policy. The attorney initiated no further contacts with the client, and failed to respond to any of the numerous attempts by the client and her son to contact the attorney. The client ultimately retained another lawyer, who unsuccessfully attempted to contact the first attorney to obtain the clientÕs file. The attorney was found to have violated FL Rules 4-1.3, 4-1.4(a), and 4-1.16(d) relating to neglect, communication, and improper withdrawal. (The attorneyÕs discipline was limited to a public reprimand due to the mitigating factors of marital problems and the death of his father.)

In Florida Bar v. DeMarco, 601 So. 2d 1197 (Fla. 1992), the attorneyÕs multiple violations of the ethics rules resulted in his disbarment. The essential violation was that he closed his law office and left the state without notifying any of his clients, including three clients who had paid him retainers to perform work that was never undertaken. Among the many violations found by the court was a breach of FL Rule 4-1.16(d), failing to take reasonable steps to protect a clientÕs interests upon termination of representation. Similarly, in Florida Bar v. Wells, 602 So. 2d 1236 (Fla. 1992), an attorney was suspended for 18 months for abandoning his law practice and being arrested for possession of cocaine and paraphernalia. Among the individual charges was failure to appear for trial without notice to the court or other parties; failure to file a court mandated writ of habeas corpus; failure to file adoption papers or to return the fee to client who had retained the attorney in an adoption matter; failure to communicate with a client in an uncontested divorce proceeding; and failing to communicate with a client and failure to attend a hearing in a probate matter. The court found mitigating factors in the attorneyÕs successful participation in drug rehabilitation programs, and the fact that the attorney had been drug free for twenty-one months. See also Florida Bar v. Brakefield, 679 So. 2d 766 (Fla. 1996)(six-month suspension for failure to clarify status of representation with client and discuss fees, failure to attend depositions and hearings, failure to keep clients reasonably informed, and failure to act with reasonable diligence and promptness, where violations were aggravated by prior admonishment for similar actions).

In Dubose v. Shelnutt, 566 So. 2d 921 (Fla. 5th DCA 1990), the court granted a writ of mandamus filed by a criminal defendant to compel a Special Assistant Public Defender to produce depositions relating to his case. The court found insufficient the attorneyÕs argument that the clientÕs request was ambiguous, holding that the attorney had a duty under FL Rule 4-1.16(d) to furnish the requested documents and that the attorney was required to contact the former client to ascertain which depositions were desired, if the clientÕs letter of request was not clear.

However, in Woodson v. Durocher, 588 So. 2d 644 (Fla. 5th DCA 1991), the court denied a writ of mandamus filed by the former client of a public defender seeking to compel the public defender to provide free copies of documents in his files. The court held that the contents of an attorneyÕs file relating to professional services performed for a client are the personal property of the attorney, not the client. The court recognized that the public defenderÕs office is an agency which maintains public records that must be available for inspection under the Florida Public Records Law, Ch. 119, Fla. Stat., but found no provision in that law requiring the agency to provide the records free of charge.

1.16:600   Fees on Termination

¥ Primary Florida References: FL Rule 4-1.16(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

Florida courts have repeatedly held that unearned fees do not belong to the lawyer when the attorney-client relationship ends, and the lawyer has no further custodial rights to such funds upon termination. See Florida Bar v. Fussell, 390 So. 2d 68 (Fla. 1980). In Faro v. Romani, 641 So. 2d 69 (Fla. 1994), the court held that an attorney who was retained under a contingency fee agreement was not entitled to compensation for services rendered when he voluntarily withdrew, absent evidence that the client breached his contract with the attorney, legally caused the contract to be breached, or placed the attorney in the position of violating the ethics rules.

Failure to represent a client in a criminal matter after accepting a fee to do so has been found to warrant a three-year suspension, and one of the violations in that regard was withdrawal without refunding the unearned portion of the fee. Florida Bar v. Page, 419 So. 2d 332 (Fla. 1982). In Florida Bar v. Berger, 394 So. 2d 415 (Fla. 1980), a lawyer was suspended for three years for failure to return to his former client $600 the client alleged was paid to cover litigation costs in a medical malpractice action. Subsequent to payment of the $600, the attorney and client entered into a contingent fee arrangement. After doing nothing to forward the case over a period of several months, and without informing the client, the attorney withdrew and referred the case to another attorney. The court found that if the $600 was for costs, the attorney had done nothing to deserve it and thus it was clearly excessive. If the $600 was a fee, then the superseding contingent fee arrangement also rendered the $600 excessive, as the lawyer would be entitled to nothing under the contingency arrangement. In Florida Bar v. Lee, 403 So. 2d 1336 (Fla. 1981), an attorney was suspended for three months and ordered to make restitution where he had collected the fee from the client in a dissolution of marriage action, but withdrew from the matter prior to its conclusion without informing either the client or the court. In Florida Bar v. Grusmark, 544 So. 2d 188 (Fla. 1989), the court found that an attorney's failure to return or account to the client for the amount of a retainer not expended upon the client's firing the attorney warranted a ten-day suspension. See also Florida Bar v. Hipsh, 441 So. 2d 617 (Fla. 1983)(public reprimand and restitution ordered for failure to return unearned portion of retainer fee).

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

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