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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Oregon Legal Ethics

1.16   Rule 1.16 Declining or Terminating Representation

1.16:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 2-109, 2-110
Background References: ABA Model Rule 1.16, Other Jurisdictions
OR Commentary:

In certain situations, withdrawal is mandatory. See DR 2-110(B). In other situations, withdrawal is permissible. See DR 2-110(C). DR 2-110(A) provides the ground rules regarding what steps must be taken in both mandatory and permissive situations if the withdrawal is to be ethical.

1.16:101      Model Rule Comparison

With regard to MR 1.16(a), DR 2-109(A)(1) provides that a lawyer “shall not accept employment . . . if the lawyer knows or it is obvious that [the prospective client] wishes to . . . [b]ring a legal action . . . or otherwise have steps taken for [him or her], merely for the purpose of harassing or maliciously injuring any other person.” Nor may a lawyer accept employment if the lawyer is aware that the prospective client wishes to “[p]resent a claim or defense . . . that is not warranted under existing law, unless it can be supported by good faith argument for an extension, modification, or reversal of existing law.” DR 2-109(A)(2). DR 2-110(B)(1) requires a lawyer to withdraw from employment if “[t]he lawyer knows or it is obvious” that the client’s motive in the legal undertaking is “merely for the purpose of harassing or maliciously injuring any other person.” DR 2-110(B)(2), (3), and (4) require withdrawal if “[t]he lawyer knows or it is obvious that the lawyer’s continued employment will result in violation of a Disciplinary Rule,” if the lawyer’s “mental or physical condition renders it unreasonably difficult for the lawyer” to effectively work, or if the lawyer is discharged by the client.

With regard to MR 1.16(b), DR 2-110(C) permits withdrawal, regardless of the effect on the client, in several circumstances. These include the client’s

· insistence on presenting a claim or defense that is “not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law,” DR 2-110(C)(1)(a);

· insistence that the lawyer pursue illegal conduct (or the client personally seeks to pursue illegal conduct); DR 2-110(C)(1)(b)-(c);

· conduct that “renders it unreasonably difficult for the lawyer to carry out the lawyer’s employment effectively,” DR 2-110(C)(1)(d);

· insistence that the “lawyer engage in conduct that is contrary to the judgment and advice of the lawyer but not prohibited under these disciplinary rules,” DR 2-110(C)(1)(e); and

· failure to “keep an agreement or obligation to the lawyer as to expenses or fees,” DR 2-110(C)(1)(f).

With regard to MR 1.16(c), DR 2-110(A)(1) provides, “If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw . . . without its permission.”

The provisions of MR 1.16(d) are substantially identical to DR 2-110(A)(2) and (3).

1.16:102      Model Code Comparison

DR 2-109 and 2-110 are nearly identical to their ABA Model Code counterparts.

1.16:200   Mandatory Withdrawal

Primary OR References: DR 2-110(B)
Background References: ABA Model Rule 1.16(a), Other Jurisdictions
Commentary: ABA/BNA § 31:1001, ALI-LGL § 32, Wolfram § 9.54
OR Commentary: EOL §§ 5.8-.12

The presumption behind the DRs is that withdrawal should be the exception rather than the rule and should not occur for frivolous or insubstantial reasons. Cf. MC DR 2-110 (generally permitted withdrawal absent client prejudice).

1.16:210      Discharge by Client

DR 2-110(B)(4) requires withdrawal if the attorney is discharged by the client. For the attorney’s own protection, discharge by the client should be fully documented.

1.16:220      Incapacity of Lawyer

DR 2-110(B)(3) requires withdrawal if the lawyer’s mental or physical condition makes it unreasonably difficult for the lawyer to carry out the employment effectively. See, e.g., In re Loew, 296 Or 328, 676 P2d 294 (1984) (“burnout syndrome” justifies withdrawal under this section); In re Biggs, 318 Or 281, 295, 864 P2d 1310 (1994) (attorney violated DR 2-110(B)(3) by failing to withdraw from representation of 22 clients when his impairment from bipolar disorder and excessive use of alcohol made it unreasonably difficult for him to effectively carry out his employment).

1.16:230      Withdrawal to Avoid Unlawful Conduct

DR 2-110(B)(2) provides that the attorney must withdraw if he or she knows or it is obvious that continuing employment will result in violation of a disciplinary rule. See In re Johnson, 9 DB Rptr 151 (1995) (failure to withdraw, pursuant to mandatory withdrawal provisions, when attorney knew client was committing fraud on workers’ compensation carrier constituted violation of DR 2-110). Any violation of any disciplinary rule will suffice.

An attorney may not, however, withdraw from employment by one current client in order to turn a current-client conflict into a former-client conflict and allow the attorney to see that client.

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

DR 2-110(B)(1), which requires withdrawal if the attorney “knows or it is obvious” that the client is proceeding “merely” to harass or maliciously injure another, requires the attorney to assess both the objective circumstances in which the attorney is operating and the intent of the attorney’s client in pursuing certain conduct. If, for example, the client has a reasonable, nonfrivolous claim to pursue, the fact that the client may wish to pursue it in part, but not “merely,” to injure another should not require withdrawal under this rule. DR 2-109(A)(1) requires that the lawyer not accept employment at the outset if the lawyer “knows or it is obvious” that the prospective client’s purpose is merely to harass or “maliciously injur[e] any other person.”

1.16:300   Permissive Withdrawal

Primary OR References: DR 2-110(C)
Background References: ABA Model Rule 1.16(b), Other Jurisdictions
Commentary: ABA/BNA § 31:1101, ALI-LGL § 32, Wolfram § 9.5.3
OR Commentary: EOL §§ 5.13-.18

The bases for permissive withdrawal are set out in DR 2-110(C). Pursuant to DR 2-110(C), a lawyer may not request permission to withdraw in matters pending before a tribunal and may not withdraw in other matters unless the reason for withdrawal is mandatory or one of those enumerated in the DR 2-110(C).

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

(A) Client-Based Problems

DR 2-110(C)(1)(a) through (c) in essence permits a lawyer to withdraw when a client seeks to draw the lawyer into frivolous or illegal conduct. These subsections are substantially similar to the mandatory withdrawal categories in DR 2-110(B)(1) and (2). See also DR 2-110(C)(1)(c) (permits withdrawal whenever client “[i]nsists that the lawyer pursue a course of conduct that is illegal or that is prohibited under these disciplinary rules”).

(B) Mental or Physical Condition

Under DR 2-110(C)(4), if a lawyer’s mental or physical condition makes it “difficult for the lawyer to carry out the employment effectively,” that lawyer may withdraw. This is a less strenuous standard than that operative under DR 2-110(B)(3) for mandatory withdrawal. But, as with DR 2-110(B)(3), mere neglect of work or distaste for the client or type of case would not be sufficient bases.

(C) Consent

DR 2-110(C)(5) permits the lawyer to withdraw when the client knowingly and freely assents to termination of the lawyer’s employment. Cf. DR 2-110(B)(4) (requires attorney to withdraw when discharged). Attorneys should not misconstrue DR 2-110(C)(5) to mean that they may reserve in their employment agreements a general right to withdraw for any reason or for no reason at all. The Legal Ethics Committee of the OSB has held in an unpublished informal opinion that an attorney may not generally override the requirements of DR 2-110 through the expedient of securing blanket consent at the outset of representation. As a general proposition, the knowing and free assent requirement means that the assent must be given at the time of withdrawal and when all material facts and circumstances relating to the withdrawal are known to the client.

(D) Nonpayment of Attorney Fees

DR 2-110(C)(1)(f) permits an attorney to withdraw when a client, after reasonable notice from the attorney, fails to keep an agreement or obligation to the lawyer as to expenses or fees. Nevertheless, the fact that an attorney has a right, in a litigation matter, to seek leave of the court to withdraw for nonpayment of attorney fees does not necessarily mean that the court must permit withdrawal if the court believes that doing so would be unfair or inequitable.

Withdrawal on these grounds does not require the client’s ability to pay or the client’s deliberate disregard of an agreement or obligation. On the other hand, nonpayment due to confusion is insufficient to allow permissive withdrawal. An unjustified withdrawal may also bar subsequent attempts to collect past-due fees.

(E) Sale of Practice

Under DR 2-110(C)(7), a lawyer may request permission to withdraw in matters pending before a tribunal if the request for withdrawal is due to the lawyer’s sale of all or part of the lawyer’s practice, in compliance with the requirements of DR 2-111.

(F) Other Good Cause

DR 2-110(C)(6) allows the attorney to assess whether a tribunal would find “other good cause” for withdrawal and, if so, to seek such withdrawal. It is not clear what this language is intended to cover and has never been applied in Oregon.

1.16:400   Order by Tribunal to Continue Representation

Primary OR References:
Background References: ABA Model Rule 1.16(c), Other Jurisdictions
Commentary: ABA/BNA § 31:1101, ALI-LGL § 32, Wolfram § 9.5.1
OR Commentary:

The DRs do not speak directly to this issue, but see 0.2:280 regarding the requirements under LR 83.7.

1.16:500   Mitigating Harm to Client Upon Withdrawal

Primary OR References: DR 2-110(A)(2)
Background References: ABA Model Rule 1.16(d), Other Jurisdictions
Commentary: ABA/BNA § 31:1201, ALI-LGL §§ 32, 33, Wolfram § 9.5.1
OR Commentary: EOL §§ 5.3-.4

(A) Duty of Confidentiality and Reason for Withdrawal

It generally should not be difficult to harmonize the duty to protect client confidences and secrets on the one hand with the right or duty to withdraw on the other. The only case in which the Oregon Supreme Court has clearly held that the reason for withdrawal may not be stated at all is client perjury, and witness perjury should arguably be treated in the same manner.

In other cases, and assuming the client objects to the attorney’s withdrawal, disclosure appears to be permitted by DR 4-101(C)(4), which permits disclosure of “[c]onfidences or secrets necessary to establish a claim or defense on behalf of a lawyer in a controversy between the lawyer and the client.”

(B) Protecting the Client

In addition to safeguarding the reasons for withdrawal, DR 2-110(A)(2) requires the attorney to take reasonable steps to avoid other means of foreseeable prejudice to the client. The rule refers specifically to giving due notice to the client, allowing adequate time for the client to retain other counsel, delivering to the client all papers and property to which the client is entitled, and complying with any other applicable laws and rules. See also In re Ross, 8 DB Rptr 195 (1994) (attorney’s failure to notify client, court, and opposing counsel of his withdrawal, in combination with attempt to withdraw four days after failing to appear at hearing, constituted failure to take steps necessary to avoid foreseeable prejudice); OSB Legal Ethics Op Nos 1991-120, 1991-90, 1991-70, 1991-60, 1991-1.

1.16:600   Fees on Termination

Primary OR References: DR 9-101(A), 2-110(A)(3)
Background References: ABA Model Rule 1.16(d), Other Jurisdictions
Commentary: ABA/BNA §§ 31:701, 31:1001, 31:1101 , ALI-LGL §§ 31, 40, Wolfram § 9.5
OR Commentary: EOL §§ 4.24, 5.7

(A) Termination Due to Conflict of Interest or Discharge

If during the course of litigation, the attorney develops a conflict of interest and is discharged by the client or required to withdraw, the attorney is entitled to reasonable attorney fees. Likewise, an attorney is entitled to recover an amount equal to the reasonable value of his or her services in quantum meruit if the attorney is discharged and the contingent-fee contract under which the attorney was employed is breached.

(B) Termination Due to Reasons Unrelated to Representation

An attorney who is suspended or disbarred before terminating representation of a client, for reasons unequivocally unrelated to the representation of the client, is not necessarily prohibited from recovering an attorney fee from the client or dividing a fee with the successor attorney. OSB Legal Ethics Op No 1991-25. On the other hand, an attorney who improperly abandons representation of a client is probably entitled to no compensation for services rendered prior thereto.

(C) Return of Fees Paid in Advance

Absent a clear written agreement to the contrary, funds paid to a lawyer in advance are considered client property protected by DR 9-101(A). See In re Biggs, 318 Or 281, 293, 864 P2d 1310 (1994). DR 2-110(A)(3) requires that a lawyer withdrawing from employment promptly refund any unearned part of an advance payment of that attorney’s fees. See also In re Gastineau, 317 Or 545, 551, 857 P2d 136 (1993) (initially reasonable flat fee becomes excessive when attorney fails to complete representation for which fee was paid and does not remit unearned portion of fee); In re McKnight, 9 DB Rptr 17 (1995) (attorney’s refusal to refund portion of retainer was violation of DR 2-110 based on clearly excessive fee doctrine).

(D) After Attorney Withdrawal for Nonpayment

In the event of withdrawal for nonpayment, a conflict may exist between the requirement of DR 2-110(A)(2) that all papers and property to which the client is entitled be delivered to the client, and the attorney’s right to a lien or the attorney’s right to a security interest to enforce payment of any unpaid fees. Cf. DR 5-103(A)(1); ORS 87.430; OSB Legal Ethics Op No 1991-90. When the client would be materially prejudiced by the failure of an attorney to deliver papers and property, the attorney is probably required to deliver such property notwithstanding the attorney’s interest if the reason for nonpayment is a lack of resources rather than a willful refusal to pay by someone who has the financial ability to do so. OSB Legal Ethics Op No 1991-90. When they conflict, the rights of the client in this regard supersede the financial interests of the attorney.

(E) Disputed Fees

If the amount of refund is in doubt, the lawyer must at least refund any undisputed amount and then retain the balance in a trust account. The lawyer must also refund any portion of a fee received that, in light of subsequent events, would be “clearly excessive” under DR 2-106(A).

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