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Ohio Legal Ethics Narrative
I. CLIENT-LAWYER RELATIONSHIP
Ohio Rule 1.16 differs from the Model Rule in the following respects:
Ohio Rule 1.16(a) substitutes "Subject to divisions (c), (d), and (e) of this rule," for "Except as stated in paragraph (c)," at the outset of division (a). At the end of the introductory sentence, after "client if," Ohio adds "any of the following applies:".
In subdivision (a)(1), Ohio substitutes "Ohio Rules of Professional Conduct" after "in violation of" instead of "rules of professional conduct".
In subdivision (a)(2), Ohio deletes the last word "or".
Ohio Rule 1.16(b), as in division (a), substitutes the "Subject to divisions (c), (d), and (e) of this rule" language for "Except as stated in paragraph (c),". Division (b) further substitutes "may withdraw from the representation of a client if any of the following applies:" instead of "may withdraw from representing a client if:".
In subdivision (b)(2), Ohio substitutes "illegal" for "criminal".
In subdivision (b)(5), Ohio adds ", financial or otherwise," after "obligation".
In subdivision (b)(6), Ohio deletes the last word "or".
Subdivisions (b)(7) and (b)(8) of the Ohio Rule have no counterparts in the Model Rule.
Subdivision (b)(9) of the Ohio Rule is identical to MR 1.16(b)(7).
Ohio Rule 1.16(c) rewrites MR 1.16(c), although it is similar in substance. Ohio states:
If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.
This is in lieu of the Model language that
[a] lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
Ohio Rule 1.16(d) differs from the Model Rule as follows: At the outset, Ohio adds "As part of the" instead of "Upon". After "to protect a client's interest," Ohio deletes the comma, inserts a period, and starts the next sentence with "The steps include giving due notice to the client, allowing reasonable time for the employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules. Client papers and property shall promptly be delivered to the client. 'Client papers and property' may include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client's representation."
This replaces the Model Rule language after "to protect a client's interests," which language states "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 or expenses that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law."
There is no separate Model Rule counterpart to Ohio Rule 1.16(e). As noted above, however, MR 1.16(d) deals with the substance of Ohio 1.16(e), but in different language. Ohio states in division (e) that "A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned, except when withdrawal is pursuant to Rule 1.17." The comparable Model Rule language is "refunding any advance payment of fee or expense that has not been earned or incurred." MR 1.16(d).
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.16(a): DR 2-110(B).
The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.16(b): DR 2-110(A)(2), (C)(1), (C)(2), (C)(5), (C)(6) & (C)(7).
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.16(c): DR 2-110(A)(1).
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.16(d): DR 2-110(A)(2).
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.16(e): DR 2-110(A)(3).
- Primary Ohio References: Ohio Rule 1.16(a)
- Background References: ABA Model Rule 1.16(a)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.180, 2.194-2.198
- Commentary: ABA/BNA § 31:1001; ALI-LGL § 32; Wolfram § 9.5.4
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 2.194 (1996).
Ohio Rule 1.16(a) sets forth three instances in which an attorney must decline or withdraw from the representation: (1) to avoid violation of an Ohio Rule of Professional Conduct or other law; (2) incapacity of the lawyer; and (3) discharge by the client. Even when withdrawal is mandatory, the lawyer still must obtain permission from the tribunal to withdraw when required by its rules to do so and must take reasonably practicable steps to protect a client's interest, including the return of any unearned fees. Rules 1.16(c), (d) & (e). See sections 1.16:400-:500. Further, several other rules on the subject of conflicts of interest independently mandate withdrawal when the conditions they describe exist. See Ohio Rule 3.7(a) (withdrawal as counsel when lawyer becomes witness) and section 3.7:200; Ohio Rule 1.7(b)) (withdrawal in face of multiple-client conflicts not cured by consent) and section 1.7:200.
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 2.198 (1996).
The operative provision here is Ohio Rule 1.16(a)(3), pursuant to which the lawyer must withdraw if discharged by the client.
Because the attorney-client employment relationship is an at-will relationship, a client has the right to discharge a lawyer at any time, with or without cause, subject to liability in quantum meruit for payment for the lawyer's services. See Ohio Rule 1.16 cmt. . Supreme Court cases so stating, decided under the former OHCPR, include Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570, 629 N.E.2d 431 (1994); Fox & Assocs. Co., L.P.A. v. Purdon, 44 Ohio St.3d 69, 541 N.E.2d 448 (1989). See section 1.5:230. If the lawyer refuses to withdraw upon discharge by the client, the lawyer is subject to discipline. See, e.g., Columbus Bar Ass'n v. Ginther, 98 Ohio St.3d 345, 2003 Ohio 1010, 785 N.E.2d 432 (respondent sanctioned under former OH DR 2-110(B)(4) for failing to withdraw until six months after client discharged him). (Ginther had subsequent difficulties under 2-110 when, among numerous other violations, he indicated to a magistrate that he intended to withdraw as counsel, but did not file a motion to do so until nine months later and apparently never informed his client of the withdrawal; DR 2-110(A)(2) violated, indefinite suspension imposed. Columbus Bar Ass'n v. Ginther, 108 Ohio St.3d 48, 2005 Ohio 79, 840 N.E.2d 628.) In Toledo Bar Ass'n v. Gabriel, 57 Ohio St.3d 18, 565 N.E.2d 570 (1991), the Ohio Supreme Court held that Gabriel violated OH DR 2-110(B)(4) by refusing to withdraw from the representation of a client despite a letter from the client discharging him and notification from the client's new counsel. Gabriel continued to file documents on behalf of the client and told the client's insurance company to deal only with him. The other side of the coin was presented in Norwest Bank Minnesota v. Alex-Saunders, No. E-00-022, 2000 Ohio App. LEXIS 3355 (Erie July 28, 2000), where the lawyer sought leave to withdraw, pursuant to former OH DR 2-110(B)(4), after his client had both discharged him and consented to his withdrawal. The trial court nevertheless denied counsel leave to withdraw. The court of appeals reversed, noting that counsel had apparently complied with the notice provisions of OH DR 2-110(A)(2) and, in accordance with the mandatory withdrawal provisions of OH DR 2-110(B)(4), was obligated to withdraw upon discharge by the client. In such circumstances, the appellate court held that the lower court's denial of the motion was an abuse of discretion.
One caveat to this general freedom of the client to discharge the lawyer arises with respect to court-appointed counsel. As Comment  to Ohio Rule 1.16 provides, "[w]hether a client can discharge appointed counsel may depend on applicable law." Even if allowed, after full explanation of the consequences to the client, the court may decide that appointment of substitute counsel is unjustified, requiring the client to engage in self-representation after discharge of the client's current counsel. Ohio Rule 1.16 cmt. . (This provision seems to be largely ignored in the literature, although Hazard & Hodes allude to the rule in 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 20.6, at 20-10 (3d ed. Supp. 2005-2) (noting client's choice is to proceed with existing lawyer or pro se; "[w]ithout this caveat, a client – most often a criminal defendant – could forestall adjudication by refusing to continue with existing counsel and further refusing or being unable to find substitute counsel.").)
A second limitation arises when a client with a disability lacks the legal capacity to discharge the lawyer. Ohio Rule 1.16 cmt.  (stating this limitation and providing guidance on how to proceed in such a situation).
A lawyer faces difficult issues when a client moves without contacting the lawyer and cannot be located. It has been opined that such action on the client's part does not constitute constructive discharge of the lawyer by the client, so the lawyer's obligations to the client continue. Cincinnati Bar Ass'n Op. 96-97-02 (Oct. 21, 1997).
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 2.197 (1996).
An attorney must decline the representation or must withdraw from representing a client if the lawyer's "mental or physical condition materially impairs the lawyer's ability to represent the client." Ohio Rule 1.16(a)(2).
Technically, the former Code analog (OH DR 2-110(B)(3)) could be violated even if no client suffered actual harm; the focus was on whether the lawyer faced unreasonable difficulty in carrying out the representation effectively. In cases brought for violation of this provision, however, the lawyer usually had committed numerous acts of misconduct attributable in large measure to the lawyer's mental or physical condition. Sanction was warranted both for the failure to withdraw when the condition arose and for the subsequent misconduct that resulted. E.g., Dayton Bar Ass'n v. Andrews, 79 Ohio St.3d 109, 679 N.E.2d 1093 (1997) (in addition to 2-110(B)(3), attorney also sanctioned for violation of numerous other provisions, including former OH DR 6-103(A)(3) and 9-102(B)(4)); Columbus Bar Ass'n v. Potts, 65 Ohio St.3d 297, 603 N.E.2d 986 (1992) (attorney also sanctioned for neglecting clients as result of substance abuse). While the provision was broadly written to cover a wide spectrum of conditions, drug or alcohol dependency was often the culprit. See, e.g., Potts supra (drug dependency); Dayton Bar Ass'n v. LaVeris, 12 Ohio St.3d 98, 465 N.E.2d 457 (1984) (drug and alcohol abuse).
To the extent Rule 1.16(a)(2) requires that an attorney evaluate his own mental and physical condition to determine whether he is competent to handle the representation of clients, a realistic assessment may be difficult for a lawyer suffering from certain types of mental or physical problems. See also Ohio Rule 8.3(a), which requires all attorneys who possess unprivileged knowledge that any lawyer has committed a violation of the Ohio Rules reflecting on fitness to practice to report such knowledge to the appropriate disciplinary authority; the 8.3(a) duty includes self-reporting. See section 8.3:200. If an attorney has unprivileged knowledge that another lawyer is suffering from a mental or physical condition that requires mandatory withdrawal, but withdrawal has not occurred, the duty to report attaches. See section 8.3:200. If the attorney's knowledge is obtained while serving as a member of a lawyer-assistance program, it is subject to an exception to the reporting requirement to encourage participation in lawyer-assistance programs. Ohio Rule 8.3(d). See section 8.3:400.
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 2.196 (1996).
An attorney must decline or withdraw if "the representation will result in violation of the Ohio Rules of Professional Conduct or other law." Ohio Rule 1.16(a)(1). The related permissive-withdrawal provision is division (b)(2), which is triggered when a client persists in conduct involving the lawyer's services, which conduct the lawyer "reasonably believes" is illegal or fraudulent. Courts in other jurisdictions occasionally have stated that "when a client insists that an attorney pursue a course of conduct that, if the lawyer complied, would violate the lawyer code or other applicable law, the lawyer must withdraw even if the lawyer had no intention of following the intentions of the client." See Charles W. Wolfram, Modern Legal Ethics § 9.5, at 552 (1986). Comment  to Ohio Rule 1.16 can be read to endorse this view. It provides that "[a] lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Ohio Rules of Professional Conduct or other law." (Emphasis added.) The comment goes on to point out that the mere suggestion by the client that the lawyer engage in what is, in fact, impermissible conduct does not require declination or withdrawal.
Disciplinary cases and opinions under the Code analog to Rule 1.16(a)(1), former OH DR 2-110(B)(2), include Disciplinary Counsel v. MacLean, 106 Ohio St.3d 50, 2005 Ohio 3672, 831 N.E.2d 423, where respondent, who had been suspended by the Supreme Court and ordered to cease all appearances on behalf of clients, nevertheless continued to represent clients in depositions, pre-trial hearings, and other litigation matters. In doing so, he violated DR 2-110(B)(2), which made withdrawal mandatory when the lawyer knows that his continued representation will violate a disciplinary rule - in this case, inter alia, OH DR 3-101(B) (practicing in violation of professional regulations). Accord Butler County Bar Ass'n v. Williamson, 117 Ohio St.3d 399, 2008 Ohio 1196, 884 N.E.2d 55 (sexual involvement with client violative of DR 1-102(A)(5) & (6) triggered mandatory withdrawal under DR 2-110(B)(2)). Continuing to represent a client, after announcing an intent to withdraw in the face of an acknowledged conflict of interest, likewise violated this provision. Office of Disciplinary Counsel v. Mazer, 76 Ohio St.3d 481, 668 N.E.2d 478 (1996). Accord Akron Bar Ass'n v. Holder, 105 Ohio St.3d 443, 2005 Ohio 2695, 828 N.E.2d 621 (failure to withdraw as required in face of stipulated conflict of interest in simultaneous representation of multiple clients with competing interests). The Board of Commissioners on Grievances and Discipline, addressing former OH DR 2-110(B)(2), found withdrawal to be mandatory when a client offered fabricated evidence and refused to reveal the fraud after the lawyer attempted to persuade him to do so. Bd. of Comm'rs on Grievances & Discipline Op. 90-07, 1990 Ohio Griev. Discip. LEXIS 14 (Apr. 20, 1990). These pre-Rule decisional interpretations would seem to be applicable under the similar language of Ohio Rule 1.16(d)(1).
In State v. Trapp, 52 Ohio App.2d 189, 368 N.E.2d 1278 (Hamilton 1977), the First District Court of Appeals held that the trial court erred in refusing to allow an attorney, George Clark, to withdraw when he knew that his representation would violate the former OHCPR. In Trapp, Clark was aware that his client's alibi defense would require using perjured or false evidence, a practice clearly prohibited under OH DR 7-102(A)(4)-(7). The court of appeals found that Clark had "a duty to withdraw" under the circumstances and that the trial court erred in not allowing him to do so. 52 Ohio App.2d at 194, 368 N.E.2d at 1282.
Finally, consistent with the first sentence of Rule 1.16 cmt. , declining employment is required if the representation cannot be performed competently and promptly (and thus violative of Rules 1.1 & 1.3; see sections 1.1:200 and 1.3:300) or without improper conflict of interest, (e.g., Rules 1.7, 1.9 & 3.7; see sections 1.7:300 (concurrent representation), 1.9:210 (former-client conflict), and 3.7:200 (lawyer as witness)).
See further discussion of Rule 1.16(a)(1) in section 1.16:240 below.
1.16:240 Legal Action Brought for the Purpose of Harassing or Maliciously Injuring Any Person, or Presenting Unwarranted Claim or Defense
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.180, 2.195 (1996).
Under the former OHCPR, an attorney was required to withdraw from representation if the lawyer knew or it was obvious that the client was "bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken for him, merely for the purpose of harassing or maliciously injuring any person.'' OH DR 2-110(B)(1). This aspect of mandatory withdrawal is now covered by Ohio Rule 1.16(a)(1), discussed above in section 1.16:230. The rule violated would be Rule 4.4(a), which prohibits a lawyer from using means having no substantial purpose other than to "embarrass, harass, delay, or burden a third person." See section 4.4:200.
Under the Code, a lawyer had to decline representation if he knew or it was obvious that the client wished to use the representation to abuse the system. Former OH DR 2-109 identified two categories of abuse: accepting representation where the client wanted steps taken in litigation "merely for the purpose of harassing or maliciously injuring any person," OH DR 2-109(A)(1), and where the client wished to present a claim or defense in litigation that was not warranted under either existing law or a good faith argument to change the existing law. OH DR 2-109(A)(2). Declination is similarly obligatory under Rule 1.16(a)(1), for accepting the representation under such circumstances would violate, respectively, Rule 4.4(a) (using means to embarrass, harass, or burden another) and Rule 3.1 (advancing frivolous claims or defenses). See sections 3.1:200 and 4.4:200.
- Primary Ohio References: Ohio Rule 1.16(b)
- Background References: ABA Model Rule 1.16(b)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.199, 2.202-2.205, 2.209, 2.211, 5.87
- Commentary: ABA/BNA § 31:1101; ALI-LGL § 32; Wolfram 9.5.3
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 5.87 (1996).
Because greater restrictions apply to conflicts of interest arising from the representation of current clients than to conflicts arising from the representation of a current client and a former client, a lawyer faced with a current-client conflict may be tempted to drop one of the clients against the client's will, transforming that client into a former client, while retaining the other. Courts have not been sympathetic to such "hot potato" maneuvering, since it poses too severe a threat to the conflict-of-interest rules governing current clients. Sarbey v. Nat'l City Bank, 66 Ohio App.3d 18, 583 N.E.2d 392 (Summit 1990). Accord Henry Filters, Inc. v. Peabody Barnes, Inc., 82 Ohio App.3d 255, 261, 611 N.E.2d 873, 877 (Wood 1992) ("An attorney who is simultaneously representing two clients with differing interests cannot conform to the rules of ethics by merely discontinuing representation of one client after improperly initiating a lawsuit against that client."). See also Picker Int'l, Inc. v. Varian Assocs., Inc., 869 F.2d 578 (Fed. Cir. 1989) (applying Ohio law to reject this practice even where conflict arose out of merger of two law firms); Pioneer-Standard Elecs., Inc. v. Cap Gemini America, Inc., No. 1:101 CV2185, 2002 U.S. Dist. LEXIS 7120 (N.D. Ohio Mar. 11, 2002) (applying former OHCPR). The "hot potato" issue is further discussed in section 1.9:200 at "When does a client become a 'former client'?"
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.199, 2.202-2.205, 2.209, 2.211 (1996).
Ohio Rule 1.16(b) identifies nine grounds on which a lawyer may withdraw from representation. If any one of these circumstances arises, withdrawal is permitted but is not required. The comments admonish, however, that "[a] decision by a lawyer to withdraw should be made only on the basis of compelling circumstances . . . ." Rule 1.16 cmt. [8A]. All of these permissive withdrawal provisions are "[s]ubject to divisions (c), (d), and (e) of this rule."
Discretionary withdrawal - Where interests of client are not adversely affected: Pursuant to Ohio Rule 1.16(b)(1), a lawyer may withdraw at any time if "withdrawal can be accomplished without material adverse effect on the interests of the client." As the ABA states, this language was moved out of the introductory language of the Rule "to clarify that the remaining subsections in Rule 1.16(b) permit the lawyer to withdraw even if there will be a material, adverse effect on the client." ABA, Annotated Model Rules of Professional Conduct 243 (6th ed. 2007) (commentary). The Rule provides no guidance on what constitutes a "material adverse effect" that would bar withdrawal on this ground. The general policy favoring completion of representation once undertaken, however, argues for a comparatively light trigger, particularly given the extensive laundry list of for-cause grounds available for permissive withdrawal.
There was no direct OHCPR analog to Rule 1.16(b)(1), although former OH DR 2-110(A)(2) generally addressed protection of the client's interests, now treated in Ohio Rule 1.16(d). See discussion at section 1.16:500.
Discretionary withdrawal - Client insists on pursuing course of conduct attorney believes is illegal or fraudulent: An attorney may withdraw from employment if a client "persists in a course of action involving the lawyer's services that the lawyer reasonably believes is illegal or fraudulent." Ohio Rule 1.16(b)(2). If the lawyer's continued employment in the representation would involve the lawyer in assisting the client in conduct known by the lawyer to be illegal or fraudulent, such continued representation would violate Ohio Rule 1.2(d) and necessitate withdrawal under Rule 1.16(a)(1). See generally sections 1.2:610 and 1.16:230. In either event, a lawyer should not have to place his professional reputation in jeopardy by being associated with a client known or reasonably thought to be engaged in an ongoing course of illegal or fraudulent conduct.
Rule 1.16(b)(2) is another of those instances in the Ohio Rules where the Model Rule language "criminal or fraudulent" has been replaced with "illegal or fraudulent." See section 1.2:600 for a discussion of the issue generally. With respect to Rule 1.16 specifically, it should be noted (1) that the use of "illegal" carries forward the same standard for permissive withdrawal that was present in the former OHCPR analog (OH DR 2-110(C)(1)(b) & (c)); and (2) that such usage is found in Model Rule states other than Ohio only in Illinois and Virginia (see Illinois Rule 1.16(b)(1)(B) & (C) ("illegal" course of conduct); Virginia Rule 1.16(b)(1) ("illegal or unjust" course of action)). As stated in the Task Force's ABA Model Rules Comparison to Rule 1.16, "[t]his allows the lawyer to withdraw when the client persists in a course of conduct . . . . includ[ing] violations of statutes or administrative regulations for which there are no criminal penalties."
Discretionary withdrawal - Client's use of lawyer's services to perpetrate crime or fraud: Unlike Ohio Rule 1.16(b)(2), which looks to the client's current conduct, Rule 1.16(b)(3) permits voluntary withdrawal when "the client has used the lawyer's services to perpetrate a crime or fraud." This "misuse" of the lawyer's services in the past justifies withdrawal "even if that would materially prejudice the client." Ohio Rule 1.16 cmt. . There was no comparable OHCPR analog (even though in its Ohio Code Comparison to Rule 1.16 the Task Force erroneously states that Rule 1.16 (b)(3) corresponds to former OH DR 2-110(C)(1)(c)). Subdivision (b)(3) is further distinguished from (b)(2) in its focus on "crime or fraud" rather than the latter's focus on conduct reasonably believed to be "illegal or fraudulent."
Discretionary withdrawal - Client does not follow attorney's advice: Because the lawyer is acting as the agent for the client, and it is the client's interests that are the object of the representation, the client has primary decision-making authority in the relationship. See section 1.2:300. Occasional disagreement over minor matters should not be cause for withdrawal. Nevertheless, when the client's disregard for the lawyer's judgment and advice is more substantial, it suggests a breakdown in the relationship such that both the client and lawyer might be better served were the relationship terminated. In addition, the Rule recognizes that an attorney need not sacrifice his personal beliefs or reputation when representing a client. If the client insists that the lawyer pursue ends or utilize means that, although permitted, are repugnant or against the advice and judgment of counsel, the attorney should be free to withdraw if necessary to protect the attorney's beliefs or reputation.
These principles are reflected in Ohio Rule 1.16(b)(4), which provides that if a client "insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement," the lawyer may withdraw from the employment.
If this issue arises in the context of a pending matter before a tribunal, however, Ohio Rule 1.16(b)(4) is trumped (as are all of the subdivisions of division (b)) by the "subject to division (c)" language at the outset of division (b). Pursuant thereto, court permission, in a matter pending before a tribunal, is required if the rules of the court so state. Cf., under the former OHCPR, McGraw v. Convenient Food Mart, No. 97-L-271, 1999 Ohio App. LEXIS 2818 (Lake June 18, 1999) (where local rules do not provide guidance, withdrawal is at court's discretion; no abuse of discretion in denying motion to withdraw on morning trial was to commence based on client's disagreement with lawyer's advice, where client consented to having lawyer represent him at trial).
Discretionary withdrawal - Client disregards obligation to lawyer, including payment of fee: An attorney may withdraw if a client "fails substantially to fulfill an obligation, financial or otherwise, to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled." Ohio Rule 1.16(b)(5). See, e.g., under the former OHCPR, Joondeph & Shaffer v. Thermal Designs, Inc., 102 Ohio App.3d 59, 656 N.E.2d 990 (Summit 1995) (withdrawal justified where client deliberately disregarded its fee obligation). The wording of subdivision (b)(5) indicates that permissive withdrawal is appropriate only when the client is in substantial breach of an obligation owed the attorney. It does not permit the lawyer to withdraw simply because the lawyer is dissatisfied with the financial terms of the lawyer-client relationship. See Charles W. Wolfram, Modern Legal Ethics § 9.5, at 550 (1986). Further, there is authority under the former OHCPR suggesting that an attorney may not exercise permissive withdrawal because of the client's failure to pay a fee, if the attorney should have realized at the outset that the client lacked the means to pay for legal services, at least where the attorney also failed to make a timely motion to withdraw in a case where court approval was required. State v. Hayes, No. 88-A-1402, 1989 Ohio App. LEXIS 4125 (Ohio App. Ashtabula Nov. 3, 1989). When an attorney intends to withdraw because of a client's failure to pay a fee, the attorney must give reasonable warning to the client that the lawyer will withdraw unless the fee payment is made, at a time sufficient to allow the client to fulfill the obligation and avoid the lawyer's withdrawal. Rule 1.16(b)(5).
Discretionary withdrawal - Client conduct makes it unreasonably difficult for attorney: An attorney may withdraw from representation if "the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client." Ohio Rule 1.16(b)(6). If a client refuses to provide necessary information to counsel or fails to attend scheduled meetings, for example, the attorney may choose to withdraw because the representation would be considered unreasonably difficult — the attorney could not appropriately manage the case. See also Toledo Bar Ass'n Op. 91-10 (n.d.) (permissive withdrawal available under former OH DR 2-110(C)(1)(d), where lawyer could not locate client despite diligent good-faith effort to do so). But cf. Cincinnati Bar Ass'n Op. 96-97-02 (Oct. 21, 1997) (where client could not be found after diligent efforts, lawyer had to continue representation when to abandon it would do client harm). Given that the Rule provides that the client's conduct must render the representation "unreasonably difficult," something more than occasional lack of cooperation by the client should be required to justify the lawyer's withdrawal.
A case to be considered in connection with the Toledo and Cincinnati Bar Associations' opinions discussed above is Wilson v. Wilson, 154 Ohio App.3d 454, 2003 Ohio 4474, 797 N.E.2d 990 (Union). In Wilson, the legal-aid attorney, appointed to represent indigent appellant Cassie Wilson in a child custody-divorce case, filed a motion to withdraw as counsel based on inadequate assistance by the client in the representation and counsel's lack of knowledge as to where Cassie was living. This motion was filed one week before the case was scheduled for trial. Two days before the trial date the magistrate granted the motion to withdraw without any notice to Cassie. The magistrate subsequently continued the trial date for two weeks. Still without counsel on the rescheduled date, Cassie argued that she never received notice of the motion for withdrawal and would have objected to the grounds of the motion if she had. Cassie's request for a second continuance was denied, and the trial court affirmed. On appeal, the court of appeals agreed that OH DR 2-110(B) ([sic] OH DR 2-110(A)(2)) had not been met (no documents returned to client; notice of withdrawal received only four days before trial was not reasonable notice), but nevertheless, because Cassie was granted the extra two weeks to find counsel, affirmed the trial court's refusal to grant a second continuance.
With respect to withdrawal based on unreasonable financial burden, see ABA, Annotated Model Rules of Professional Conduct 246 (6th ed. 2007) (commentary).
Discretionary withdrawal - Withdrawal with client's assent: An attorney is free to withdraw from the representation if "the client gives informed consent to termination of the representation." Ohio Rule 1.16(b)(7). The attorney-client relationship is an at-will relationship, and the client is free to terminate this relationship at any time. This provision simply makes it possible for the attorney to ask the client to do so. Under the Ohio Code analog to 1.16(b)(7) (DR 2-110(C)(5)), withdrawal was permitted if the client "knowingly and freely assent[ed]" to the termination. In Cleveland Bar Ass’n v. Norton, 116 Ohio St.3d 226, 2007 Ohio 6038, 877 N.E.2d 964, the Court found that in unilaterally dropping his client’s case without the client's consent, respondent violated this provision.
Discretionary withdrawal - Sale of law practice: Ohio Rule 1.16(b)(8) permits withdrawal where "the lawyer sells the law practice in accordance with Rule 1.17." As we note in the portion of the treatise dealing with Rule 1.17, "permissive" withdrawal after completion of the sale of a practice does not make a whole lot of sense. Clients of the seller will either become clients of the buyer or of some other lawyer; this can properly be viewed as a constructive discharge, calling for mandatory withdrawal under Ohio Rule 1.16(a)(3). Even without the constructive discharge twist, it is not a matter of "may withdraw"; the selling lawyer, by the very nature of the transaction, "has withdrawn," and his or her clients must look elsewhere for representation.
Discretionary withdrawal - Other good cause for withdrawal exists: Obviously, Ohio Rule 1.16(b)(9) is a catch-all provision, designed to provide an escape in appropriate circumstances where no other permissive withdrawal ground is applicable. The ABA notes that most of the cases under this division concern "antagonism between lawyer and client." ABA, Annotated Model Rules of Professional Conduct 269 (5th ed. 2003).
Impermissible withdrawal: Once a lawyer agrees to undertake representation, it is expected that the lawyer will see the representation to conclusion unless grounds for mandatory or permissive withdrawal lie. The policy underlying these provisions is that an attorney should not accept employment unless it can be performed to completion, because withdrawal under 1.16(a) and 1.16(b)(2)-(9) has the potential to cause at least some hardship to the client. See Bennett v. Bennett, 86 Ohio App.3d 343, 620 N.E.2d 1023 (Cuyahoga 1993) (purpose of former OH DR 2-110 to assure client will not be prejudiced as result of withdrawal of counsel). A trusting attorney-client relationship requires that the attorney honor the parties' contractual agreement and not simply withdraw from representation without justification.
Under the former OHCPR, violation of OH DR 2-110(C) could lead to the lawyer's forfeiting any rights to attorney fees for the work already performed, W. Wagner & G. Wagner Co., L.P.A. v. Block, 107 Ohio App.3d 603, 669 N.E.2d 272 (Erie 1995) (applied in hourly-rate contract situation); Sandler v. Gossick, 87 Ohio App.3d 372, 622 N.E.2d 389 (Cuyahoga 1993) (applied in contingent-fee contract situation), and give rise to a malpractice claim. See, e.g., Rumley v. Buckingham, Doolittle & Burroughs, 129 Ohio App.3d 638, 718 N.E.2d 964 (Franklin 1998). The mere fact that a court allowed the withdrawal and the clients did not oppose the motion was not, standing alone, conclusive evidence that just cause existed for the withdrawal. See W. Wagner & G. Wagner Co., L.P.A. v. Block, 107 Ohio App.3d 603, 669 N.E.2d 272 (Erie 1995).
- Primary Ohio References: Ohio Rule 1.16(c)
- Background References: ABA Model Rule 1.16(c)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 2.189
- Commentary: ABA/BNA § 31:1106; ALI-LGL § 32; Wolfram § 9.5.1
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 2.189 (1996).
If an action is pending before a tribunal, Ohio Rule 1.16(c) obligates an attorney to obtain from the tribunal permission to withdraw if the rules of the tribunal so require. See, e.g., Cuyahoga Juv R 7. (The second sentence of MR 1.6(c), requiring a lawyer to continue representation when ordered to do so by a tribunal, notwithstanding good cause to withdraw, has been deleted from the Ohio Rule. We could find no reference to this deletion in the "legislative history.") Thus, before withdrawing, an attorney must check the rules of the particular tribunal to determine if permission to withdraw is necessary. Cincinnati Bar Ass'n v. Jones, 91 Ohio St.3d 373, 745 N.E.2d 418 (2001) (failure to follow local court rules requiring that withdrawing lawyer obtain court's permission violated former OH DR 2-110(A)(1)). Division (c) applies irrespective of whether the withdrawal is mandatory under division (a) or permissive under division (b). See ABA, Annotated Model Rules of Professional Conduct 247 (6th ed. 2007) (commentary). In criminal cases, constitutional concerns also limit: 1) the attorney's right to seek withdrawal on the basis that there are no nonfrivolous grounds to pursue on appeal; and 2) the court's authority to grant permission to withdraw for this reason. Penson v. Ohio, 488 U.S. 75 (1988); Anders v. California, 386 U.S. 738 (1967).
A further limitation may arise when the lawyer serves as appointed counsel. As stated in Ohio Rule 1.16 cmt. , withdrawal by an appointed lawyer "ordinarily requires approval of the appointed authority." In language that would appear to be applicable to any lawyer in pending litigation (and not just to appointed counsel), the comment goes on to note that a lawyer seeking withdrawal may be doing so in response to a client's demand that the lawyer engage in unprofessional conduct. Spelling this out for the court, however, might compromise client confidentiality. Comment  to the Rule recognizes this dilemma and, in advice really addressed to courts considering a lawyer's request to withdrawal, suggests that "[t]he lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient [explanation]." Ohio Rule 1.16 cmt. .
In an important opinion bearing on the timing of withdrawal, as it applies to the statute of limitations for malpractice, the Supreme Court in Smith v. Conley, 109 Ohio St.3d 141, 2006 Ohio 2035, 846 N.E.2d 509, held that the one-year limitation for bringing a legal malpractice claim, is not triggered by the filing of a motion to withdraw as required by local court rule, but rather by the lawyer's earlier letters to his client stating that he was terminating the attorney-client relationship. As a result, the malpractice action, filed more than one year after the letters, was time barred. Justice Lundberg Stratton filed a strong dissent, arguing that withdrawal pursuant to local court rule "establishes a bright line that clearly advises all parties when an attorney-client relationship has been terminated and eliminates the need for further factual inquiries into the actions of the parties." Id. at ¶ 14. The Smith case is further discussed in section 1.1:300.
- Primary Ohio References: Ohio Rule 1.16(d) & (e)
- Background References: ABA Model Rule 1.16(d)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.190-2.193
- Commentary: ABA/BNA § 31:1201; ALI-LGL §32; Wolfram § 9.5.1
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.190-2.193 (1996).
Ohio Rule 1.16(d) provides that before an attorney withdraws from the representation of a client, the lawyer must
take steps to the extent reasonably practicable, to protect a client's interest. The steps include giving due notice to the client, allowing reasonable time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.
This division of the Rule goes on to state that the delivery of client papers and property shall be made "promptly." Id. The first disciplinary case invoking Rule 1.16(d) “because [respondent] withdrew from [his client’s] case without contemporaneously locating or returning her file,” is Cincinnati Bar Ass’n v. Lawson, 119 Ohio St.3d 58, 2008 Ohio 3340, 891 N.E.2d 749, at para. 52. These duties apply even where the client has unfairly discharged the lawyer. Ohio Rule 1.16 cmt. . See also Rule 1.16 cmt. [8A].
If withdrawal is conditioned on court approval, it is the court's duty to make sure that the lawyer is in compliance with these requirements. Williams v. Williams, Nos. L-99-1324, L-98-1411, 2000 Ohio App. LEXIS 2232 (Lucas May 26, 2000) (violation of local rule and OH DR 2-110(A)(2) requirements); Tschudy v. Tschudy, No. CA-7294, 1988 Ohio App. LEXIS 673 (Stark Feb. 16, 1988). Accord Bennett v. Bennett, 86 Ohio App.3d 343, 620 N.E.2d 1023 (Cuyahoga 1993) (following Tschudy).
Simply abandoning the client by failing to carry out the object of the representation may constitute constructive withdrawal and a violation of this provision. It was so held under the OHCPR. E.g., Cleveland Bar Ass’n v. Norton, 116 Ohio St.3d 226, 2007 Ohio 6038, 877 N.E.2d 964 (lawyer dropped case after statute had run on contemplated retaliation claim; while lawyer advised client of colorable wrongful discharge claim on which statute had not run, Court found violation of DR 2-110(A)(2), requiring lawyer to take reasonable steps to avoid foreseeable prejudice to client before withdrawing). Accord Disciplinary Counsel v. Lord, 114 Ohio St.3d 466, 2007 Ohio 4260, 873 N.E.2d 273 (abandoning clients violated 2-110(A)(2)). In Columbus Bar Ass'n v. McCorkle, 105 Ohio St.3d 430, 2005 Ohio 2588, 828 N.E.2d 99, respondent abandoned his practice altogether, thereby violating, inter alia, former OH DR 2-110(A)(2) (withdrawal without taking steps to avoid prejudice to clients), as well as 2-110(A)(1) (prohibiting withdrawal without obtaining court's required permission). Such conduct could also be viewed as governed by provisions dealing with neglect and the related rules set forth in former OH DR 7-101(A)(1)-(3) -- all now covered by Ohio Rule 1.3. See generally Cincinnati Bar Ass'n Op. 96-97-02 (Oct. 21, 1997) (citing former OHCPR provisions to support its determination that even where client cannot be found after diligent efforts, lawyer must continue representation if abandoning it would do client harm).
In Mahoning County Bar Ass'n v. Olivito, 110 Ohio St.3d 64, 2006 Ohio 3564, 850 N.E.2d 702, respondent argued that he had not violated former DR 2-110(A)(2) because the clients had filed a grievance against him, thereby effectively discharging him. In rejecting this argument, the Court found that Mrs. Accola had specifically stated in the grievance that she had not discharged respondent. The Court then went on to find that
respondent attempted to withdraw as counsel for the Accolas before he had taken reasonable steps to avoid foreseeable prejudice to the rights of his clients, before he had provided notice of withdrawal, and before giving his clients an opportunity to employ other counsel.
Id. at ¶ 18. This argument by respondent would appear to have been a red herring in any event, since both under the former Code (DR 2-110(B)(4)) and under the Rule (1.16(a)(3)), a lawyer must withdraw if discharged by the client. Thus, it is not surprising that in other cases the Court has applied DR 2-110(A)(2) & (3) (obligations upon withdrawal), not only when the lawyer did in fact withdraw without discharge by the client, but also when the client fired the lawyer. Because of 2-110(B)(4), the end result is the same. See, e.g., Disciplinary Counsel v. Friedman, 114 Ohio St.3d 1, 2007 Ohio 2477, 866 N.E.2d 1076 (applying DR 2-110(A)(3) (obligation to return unearned fees upon withdrawal) in five different instances in which the client discharged respondent). The same result will follow under the Rules, not only because of the discharge-equals-mandatory-withdrawal provision of 1.16(a)(3), but also because of Rule 1.16 cmt. , which requires prompt return of client property (i.e., unearned fees) "[e]ven if the lawyer has been unfairly discharged." See generally 1 Restatement (Third) of the Law Governing Lawyers § 33(1) & cmt. a (2000) (obligations upon termination apply "regardless of whether the client or the lawyer initiates the termination").
Adequate notice to client: Regardless of whether the withdrawal is mandatory or permissive, Rule 1.16(d) requires the withdrawing attorney to give the client notice of the lawyer's intention to withdraw at a time sufficient to allow the client to hire substitute counsel if the client so chooses. See generally Charles W. Wolfram, Modern Legal Ethics § 9.5, at 543-44 (1986) ("Courts have emphasized particularly the requirement of giving notice to the client in time to permit the client to obtain substitute counsel."). Failure to do so led to disciplinary action under the OHCPR. Dayton Bar Ass'n v. Gross, 17 Ohio St.3d 206, 478 N.E.2d 792 (1985) (lawyer sanctioned under OH DR 2-110(A)(2) for failure to notify client of withdrawal). In Akron Bar Ass'n v. Johnstone, 54 Ohio St.2d 485, 377 N.E.2d 790 (1978), the court publicly reprimanded Johnstone for withdrawing from a case without notifying his client, even though Johnstone believed that his part in the case had been accomplished and that the remainder of the case was being handled by co-counsel. See also Cuyahoga County Bar Ass’n v. Leneghan, 117 Ohio St.3d 103, 2008 Ohio 506, 881 N.E.2d 1241 (DR 2-110 violation not charged; public reprimand for neglect that included failure to provide notice to either client or court of appeals that respondent was withdrawing from appeal); Wilson v. Wilson, 154 Ohio App.3d 454, 2003 Ohio 4474, 797 N.E.2d 990 (Union) (in nondisciplinary context, court noted that former OH DR 2-110(A)(2) not complied with, but found no prejudice inasmuch as magistrate granted 19-day continuance to permit party to obtain new counsel; no error found in lower court's denial of second continuance).
Without permission from the tribunal, a lawyer was not free under the Code to withdraw without notice to the client. Columbus Credit Co. v. Evans, 82 Ohio App.3d 798, 613 N.E.2d 671 (Franklin 1992). Nevertheless, in situations where withdrawal had to be approved by the court, it was held that a trial court could allow counsel to withdraw without prior notice to the client. If it allowed such withdrawal, the trial court was under a duty to give the client notice of the counsel's withdrawal, along with an opportunity to obtain substitute counsel. Cotton v. Cotton, No. 88AP-1041, 1989 WL 50571 (Ohio App. Franklin May 9, 1989). A later decision of the Ohio Supreme Court indicated, however, that the withdrawing lawyer should give notice to the client in any event. Office of Disciplinary Counsel v. Butler, 85 Ohio St.3d 1, 706 N.E.2d 757 (1999) (lawyer sanctioned for failure to give client sufficient notice of court-approved withdrawal; possibility of court-provided notice not mentioned). Given the seemingly absolute obligation to give due notice to the client, as set forth in Rule 1.16(d), following the Butler rule and giving notice to the client in any event is definitely the recommended course.
Notification of withdrawal need not be elaborate, but it must indicate in some definite way that the attorney's work is at an end. See generally Charles W. Wolfram, Modern Legal Ethics § 9.5, at 542 (1986). A cover letter to a final billing often will do. When a lawyer seeks to withdraw from a case after undertaking an initial investigation and determining that the case lacks merit, the lawyer must give the client due notice of withdrawal, but the notice need not be in writing. As the Ohio Supreme Court commented in Trumbull County Bar Ass'n v. Donlin, 76 Ohio St.3d 152, 155, 666 N.E.2d 1137, 1139 (1996): "While it probably would have been more prudent of respondent to have notified his client in writing that he would not handle the case further, the fact that it was not reduced to writing does not rise to the level of a violation under OH DR 2-110(A)(2)."
A disciplinary case more recent than Donlin, however, suggests that a lawyer who relies solely on written notice of withdrawal, without more, does so at his peril. In Columbus Bar Ass'n v. Ashton, 108 Ohio St.3d 37, 2006 Ohio 78, 840 N.E.2d 618, the respondent did send a copy of his notice of withdrawal from litigation to the client, but the client "apparently" never received it. The Supreme Court found that respondent had violated former OH DR 2-110(A)(2) because he "failed to properly withdraw from [his client's] case." Id. at ¶ 22. The teaching of Ashton apparently is that, at least under the Code, a withdrawing lawyer must take the steps necessary to make sure that the client has in fact been notified of the withdrawal. The new Rule, like its Code analog, requires that "due" notice be given and that the lawyer "endeavor to minimize the possible adverse effect on the rights of the client and the possibility of prejudice to the client as a result of the withdrawal." Rule 1.16 cmt. [8A]. Whether this includes the rather onerous standard of the Ashton case is not entirely clear, but so long as the issue is in doubt a lawyer would be well-advised to confirm the client's knowledge of the withdrawal by a follow-up phone call or by sending the notice by registered or certified mail, return receipt requested.
The Donlin-Ashton waters were further muddied by the Court's later decision in Cuyahoga County Bar Ass'n v. Ballou, 109 Ohio St.3d 152, 2006 Ohio 2037, 846 N.E.2d 519, where a lawyer was disciplined under former OH DR 6-101(A)(3) for missing a hearing at which his [former?] client was evicted, even though the respondent orally advised his then client, prior to the hearing, that he would not continue the representation and would not appear on the client's behalf unless he was paid (which he was not). The Court makes a point of referring to the fact that the "board also noted that respondent did not confirm his decision to withdraw in writing." Id. at ¶ 5. Once again, as in Smith v. Conley, discussed in section 1.16:400 supra, Justice Lundberg Stratton was the lone dissenter, and once again she raised persuasive points. In addition to asserting that the majority's decision in Ballou was at odds with that in Smith, she also pointed out that the Ballou result is hard to reconcile with Donlin, where "we expressly held that the Disciplinary Rules do not require that notice to a client of withdrawal from employment be reduced to writing." Id. at ¶ 15.
When a lawyer departs from a law firm, did former OH DR 2-110(A)(2) place a duty on the departing lawyer to inform those whom he or she was representing of that fact? Several local bar associations opined that it did. See Cleveland Bar Ass'n Op. 89-5 (Feb. 23, 1990); Ethics Opinion, Cincinnati Bar Report, July 8, 1986, at 7. Such a requirement would help preserve the client's right to counsel of choice — the client may continue with the original firm as counsel or transfer the business instead to the departing lawyer. Nevertheless, the Ohio Supreme Court rejected this position in Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 707 N.E.2d 853 (1999). The Court reasoned that even though the departing lawyer had handled matters on behalf of various clients, the clients were clients of the firm, not the departing lawyer. The Court noted that, at its core, the purpose of the Disciplinary Rule was to protect clients from abandonment. Such a concern does not arise when a lawyer departs from a firm; upon the departure of one lawyer in a firm, another lawyer in the firm would simply take over the representation.
Return of papers and property to which client is entitled: When an attorney withdraws from representation, the attorney must "deliver to the client all papers and property to which the client is entitled" and must do so "promptly." Ohio Rule 1.16(d). See generally, under the former OHCPR, Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570, 629 N.E.2d 431 (1994) (discharged attorney must yield case file). (See also the responsibility of the lawyer set forth in Ohio Rule 1.15(d), without regard to withdrawal, to "promptly deliver to the client . . . any funds or other property that the client is entitled . . . to receive." See section 1.15:220). Failure to comply with the delivery obligation can lead to disciplinary action. E.g., Cleveland Bar Ass'n v. Bancsi, 72 Ohio St.3d 525, 651 N.E.2d 949 (1995) (lawyer's failure to return case file after discharge by client violated DR 2-110(A)(2)).
Three principal questions arose with respect to interpretation of this provision under the former OHCPR, the first two of which are resolved by the new Rules. First, the former rule imposed a mandatory duty to deliver covered property to the client upon withdrawal. Some sources, however, spoke of a duty that applied upon client request. Bd. of Comm'rs on Grievances & Discipline Op. 92-8, 1992 Ohio Griev. Discip. LEXIS 13, at *9 (Apr. 10, 1992) ("An attorney has an ethical duty to promptly deliver a former client's case files to the former client upon request"). And, while former OH DR 9-102(B)(4) contained a duty to deliver property to which an existing client is entitled "as requested by a client," new Rule 1.15(d) contains no such limitation. See sections 1.15:220, :300. Thus it is now clear that the duty to provide -- both to former clients (upon withdrawal) and to current clients -- the papers and property they are entitled to receive exists independent of any request therefor.
Second, although former OH DR 2-110(A)(2) provided no guidance as to which papers and property were ones to which "the client is entitled," Ohio Rule 1.16(d) does so; they "may include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client's representation." Ohio Rule 1.16(b). See also Board of Comm'rs on Grievances & Discipline Op. 92-8, 1992 Ohio Griev. Discip. LEXIS 13 (Apr. 10, 1992):
Materials acquired or prepared for the purposes of representing the client and other materials that might prove beneficial to the client should be returned. These materials include, but are not limited to all significant correspondence, investigatory documents and reports the client has paid for, filed or unfiled but prepared pleadings and briefs, and all materials supplied by the client.
Id. at *9; Bd. of Commr's on Grievances & Discipline Op. 88-024, 1988 Ohio Griev. Discip. LEXIS 7 (Aug. 12, 1988).
This return requirement does not preclude an attorney from retaining a copy of the materials, since the lawyer may need the information should a dispute arise between the attorney and the client. The attorney should not charge the client for the costs of copying, however, because the client has no interest in the attorney's retention of copies. Op. 92-8, 1992 Ohio Griev. Discip. LEXIS 13. See Ohio Rule 1.16 cmt. [8A].
The third question is the effect of a retaining lien on the requirement to return client property and papers. The common law of Ohio gives lawyers a right to place a lien on client papers when a dispute over fees owed arises. See section 1.8:1130. Where such a lien is exercised, it can be argued that the papers cease to be items to which "the client is entitled" and hence failure to turn them over does not violate Ohio Rule 1.16(d). See, under the former rule, Cleveland Bar Ass'n Op. 104, at 2 (Nov. 12, 1973) ("If the fees have been earned, and there was no ethical breach by the attorney in withdrawing according to Disciplinary Rule 2-110, then under local law [of retaining liens] in Ohio the client is clearly not entitled to the papers as long as fees remain unpaid." (bracketed material added)). The Board of Commissioners on Grievances and Discipline, however, stated that the assertion of a retaining lien in order to solve fee disputes may violate former OH DR 2-110(A)(2) where it causes foreseeable prejudice to the rights of clients and therefore use of such liens is to be discouraged. Bd. of Comm'rs on Grievances & Discipline Op. 92-8, 1992 Ohio Griev. Discip. LEXIS 13 (Apr. 10, 1992). See also Toledo Bar Ass'n Op. 92-16 (n.d.) (warning that the ethical permissibility of exercising an attorney's lien varies by the circumstances). Again, see section 1.8:1130. Requiring a client to sign a release of any claims the client may have against the attorney as a condition for return of the client's file upon discharge also is improper. Cincinnati Bar Ass'n v. Schultz, 71 Ohio St.3d 383, 643 N.E.2d 1139 (1994) (treating this as an attempt to limit malpractice liability in contravention of former OH DR 6-102(A)). See section 1.8:900.
Return of unearned fees: "A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned, except where withdrawal is pursuant to Rule 1.17." Ohio Rule 1.16(e). See also Ohio Rule 1.15(d). Failure to do so warrants sanction. See, under the Code, Disciplinary Counsel v. Mathewson, 113 Ohio St.3d 365, 2007 Ohio 2076, 865 N.E.2d 891 (violation of identical language in former OH DR 2-110(A)(3)); Cleveland Bar Ass'n v. Helfgott, 109 Ohio St.3d 360, 2006 Ohio 2579, 847 N.E.2d 1212 (violation of DR 2-110(A)(3)); Disciplinary Counsel v. Greco, 107 Ohio St.3d 155, 2005 Ohio 6045, 837 N.E.2d 369 (same); Columbus Bar Ass'n v. Halliburton-Cohen, 106 Ohio St.3d 98, 2005 Ohio 3956, 832 N.E.2d 42(same); Cincinnati Bar Ass'n v. Watson, 92 Ohio St.3d 413, 750 N.E.2d 1114 (2001) (violations, inter alia, of both former OH DR 2-110(A)(3) and 9-102(B)(4)). As noted in this section supra, the Friedman case, 114 Ohio St.3d 1, 2007 Ohio 2477, 866 N.E.2d 1076, applied the 2-110(A)(3) withdrawal obligation to return unearned fees to multiple instances in which the lawyer was fired by the client. That same result can be expected under the Rules. See Ohio Rule 1.16 (a)(3), (d), (e) & cmt. . Accord ABA, Annotated Rules of Professional Conduct 251-52 (6th ed. 2007) (commentary) (citations include discharge cases). The Restatement also expressly so states as a matter of general ethics law. See 1 Restatement (Third) of the Law Governing Lawyers § 33(1) & cmt. a (2000).
In determining what part of the fee has been earned, upon proper withdrawal the lawyer's right to recovery under the contract ceases and is measured instead, under the doctrine of quantum meruit, by the reasonable value of the lawyer's services rendered. Frey v. Stegall, No. CA 1586, 1994 Ohio App. LEXIS 1985 (Athens May 2, 1994) (quantum meruit proper measure of recovery upon attorney's withdrawal). See also Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570, 629 N.E.2d 431 (1994); Fox & Associates Co., L.P.A. v. Purdon, 44 Ohio St.3d 69, 541 N.E.2d 448 (1989), discussed in section 1.16:600 below. In contrast, where the lawyer voluntarily withdraws without just cause, no fees are recoverable. W. Wagner & G. Wagner Co., L.P.A. v. Block, 107 Ohio App.3d 603, 669 N.E.2d 272 (Erie 1995) (applied in hourly rate-contract situation); Sandler v. Gossick, 87 Ohio App.3d 372, 622 N.E.2d 389 (Cuyahoga 1993) (applied in contingent-fee contract situation). See section 1.5:260. Nonrefundable retainers are impermissible in Ohio, unless the client is advised in writing that if the representation is not completed, the client may be entitled to a refund based on the value of the representation. Ohio Rule 1.5(d)(3). See section 1.5:430.
- Primary Ohio References: see Ohio Rule 1.16(e)
- Background References: see ABA Model Rule 1.16(d)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 2.129
- Commentary: ALI-LGL § 40
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 2.129 (1996).
In addition to the obligation under Rule 1.16(e) to return unearned fees upon withdrawal and the measure of compensation, if any, upon withdrawal, both discussed in section 1.16:500 above, fee issues also can arise when a lawyer is discharged. These issues are discussed in this section. (As noted in section 1.16:500, the Code analog to Rule 1.16(e) (DR 2-110(A)(3)) was applied in discharge cases; this follows from the fact that discharge required mandatory withdrawal. See DR 2-110(A)(4). See Disciplinary Counsel v. Friedman, 114 Ohio St.3d 1, 2007 Ohio 2477, 866 N.E.2d 1076. Rule 1.16(e) will no doubt be similarly applied, given the identical mandate in Rule 1.16(a)(3) and Comment , which states that even if unfairly discharged, the lawyer must take all reasonable steps to mitigate the consequences to the client; under Rule 1.16(d) those mitigation steps include "delivery to the client all … property [i.e., unearned fees] to which the client is entitled.")
If a lawyer is discharged, with or without just cause, before the completion of the representation, the doctrine of quantum meruit, rather than the contract, determines appropriate compensation. This approach to the appropriate measure of fees on discharge was first adopted by the Ohio Supreme Court in Fox & Associates Co., L.P.A. v. Purdon, 44 Ohio St.3d 69, 541 N.E.2d 448 (1989). There, the Court stated:
We hold that where an attorney is discharged by a client with or without just cause, and whether the contract between the attorney and client is express or implied, the attorney is entitled to recover the reasonable value of services rendered prior to the discharge on the basis of quantum meruit.
The new rule strikes the proper balance by providing clients greater freedom in substituting counsel, and in promoting confidence in the legal profession while protecting the attorney's right to be compensated for services rendered.
Id. at 72, 541 N.E.2d at 450 (citations omitted).
See Endicott v. Johrendt, No. 97 APE 08-1122, 1998 Ohio App. LEXIS 1888 (Franklin Apr. 30, 1998) (constructive discharge; lawyers entitled to quantum meruit fees plus expenses); cf. Levey v. Carpenter, No. 62784, 1993 Ohio App. LEXIS 3071 (Cuyahoga June 17, 1993) (while contract no longer controls, terms may still be considered as evidence of just and reasonable value of services). (For a somewhat draconian application of the Fox rule, see City of Moraine v. Lewis, 151 Ohio App.3d 526, 2003 Ohio 460, 784 N.E.2d 774 (Montgomery), where a contract provided that if the city discharged its law director without just cause, the city would be obligated to compensate the director for the remainder of the three-year term. The law director, Lewis, had expressed concern about taking the job because of the city's "history of hiring and then promptly firing its law directors." Id. at ¶ 2. Hence the three-year contract and the obligation to compensate the director for the remainder of the term if he were discharged without cause. Of course, a newly-elected city council fired Lewis after one month on the job, without cause. The court nevertheless found the compensation provision unenforceable as a matter of public policy, citing, inter alia, former OH DR 2-110(A)(3), which, like current Ohio Rule 1.16(c), obligated a withdrawing lawyer to refund promptly any unearned fees.)
The burden of proving entitlement rests with the lawyer. Thus, where a lawyer who withdrew or was discharged chose not to appear at the trial at which the client was seeking the $2,500 amount obtained in settlement of a lemon-law case, there was no evidence in support of the lawyer's entitlement to any part of the settlement proceeds and the judgment for the client was affirmed. Watterson v. King, 166 Ohio App.3d 704, 2006 Ohio 2305, 852 N.E.2d 1278.
As set forth in section 1.5:220, to recover on a quantum meruit claim, the lawyer must show that the services were rendered with the client's knowledge and approval, not gratuitously. Under the doctrine of quantum meruit, the lawyer is to be paid the reasonable value of the services rendered, based on the totality of the circumstances, in accordance with the guidelines now set forth in Rule 1.5(a)(1)-(8).
The Court subsequently reaffirmed the Fox approach, over a strong dissent, in Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570, 629 N.E.2d 431 (1994). Accord Goldauskas v. Elyria Foundry Co., 145 Ohio App.3d 490, 763 N.E.2d 645 (Lorain 2001). In syllabus two, the Reid Court further fleshed out the details of the doctrine as applied to a discharged lawyer who had been working under a contingency-fee arrangement. According to the Court, in these circumstances the right to recover in quantum meruit arises only upon the successful occurrence of the contingency. Accord Gruenspan Co., LPA v. Thompson, 2003 Ohio 3641, 2003 Ohio App. LEXIS 3287 (Cuyahoga). In Cincinnati Bar Ass'n v. Schultz, 71 Ohio St.3d 383, 643 N.E.2d 1139 (1994), the Court enforced this policy, sanctioning a lawyer under former OH DR 2-106(A) for entering into contingent-fee agreements with clients whereby the clients agreed to pay an hourly charge for the work performed if they discharged the attorney before completion of the representation. Accord Columbus Bar Ass'n v. Klos, 81 Ohio St.3d 486, 692 N.E.2d 565 (1998). See Roberts v. Hutton, 152 Ohio App.3d 412, 2003 Ohio 1650, 787 N.E.2d 1267 (Franklin) (where settlement achieved after lawyer discharged or withdrew, maximum extent of right to fees is reasonable value of services rendered prior to date of termination; clause in contingency-fee agreement, stating that one-third of last best settlement offer constitutes fair market value of services rendered, was invalid); Putnam v. Hogan, 122 Ohio App.3d 351, 701 N.E.2d 774 (Franklin 1997) (lawyer discharged prior to recovery sought in underlying action, therefor not entitled to contingent fee under agreement with client. On settlement of underlying action, however, lawyer became entitled to recovery in quantum meruit).
Should the client ultimately recover, not on the claim involved in the representation itself, but on a malpractice claim against successor counsel for their mishandling of the representation, the application of Reid is unclear. In Belovich v. Saghafi, 104 Ohio App.3d 438, 662 N.E.2d 391 (Cuyahoga 1995) (per curiam), the Eighth District Court of Appeals split on this issue with the majority finding, over a strong dissent, that the quantum meruit recovery could be satisfied out of the malpractice judgment.
In determining the extent of the permissible quantum meruit recovery in the contingency-fee context, the amount that would have been owed had the contingency-fee contract been carried to completion sets the maximum amount that the lawyer can recover; it may well be less. The Ohio Supreme Court adopted this approach in Reid because it believed it necessary to assure that a client can discharge her lawyer without fear of economic penalty.
In contingency-fee situations, lawyers often do not keep complete time records since the contemplated fee is usually a percentage of the ultimate recovery without regard to the time expended. But to the extent the lawyer is discharged and the fee becomes measured by quantum meruit principles, rather than the mere occurrence of a contingency, the lawyer will need to have accurate records to help prove the worth of the services provided. Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St.3d 570, 629 N.E.2d 431 (1994).
If a lawyer withdraws, his or her right to compensation is dependent upon whether the withdrawal was with just cause — if it was, quantum meruit applies; if not, the lawyer forfeits the fee. See section 1.16:500, final paragraph.
In an interesting fee-agreement/termination case, arising out of a highly publicized lawsuit involving appellee (Medical Mutual, a/k/a Blue Cross and Blue Shield of Ohio) and state regulatory agencies, appellee entered into a contract terminating its relationship with its then counsel, Kenneth Seminatore. The agreement prohibited Seminatore from providing any further representation as to "new or future matters" for Blue Cross. Seminatore was not owed any money for legal work performed prior to the date of the contract. Nevertheless, Seminatore sued Blue Cross, alleging breach of a provision of the contract providing for a $75,000 per month retainer, which "assured of continuity in your [Seminatore's] completion of existing matters." The court of appeals affirmed the granting of summary judgment for Blue Cross; it held that the contract related to existing matters, of which there were none, and that it did not call for Blue Cross to pay fees where, as here, no unpaid services had been rendered. Seminatore v. Medical Mutual, 136 Ohio App.3d 758, 760, 737 N.E.2d 1016, 1017 (Cuyahoga 2000).