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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
Pennsylvania Legal Ethics
1.16:100 Comparative Analysis of Pennsylvania Rule
With regard to paragraph (a), DR 2-109(A) provided that a lawyer "shall not accept employment... if he knows or it is obvious that [the prospective client] wishes to...[b]ring a legal action... or otherwise have steps taken for him, merely for the purpose of harassing or maliciously injuring any 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 2-110(B) provided that a lawyer "shall withdraw from employment...if":
(1) He knows or it is obvious that his client is bringing the legal action...or is otherwise having steps taken for him, merely for the purpose of harassing or maliciously injuring any person.
(2) He knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule.
(3) His mental or physical condition renders it unreasonably difficult for him to carry out the employment activity effectively.
(4) He is discharged by the client.
(1) His client: (a) Insists upon 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; (b) Personally seeks to pursue an illegal course of conduct; (c) Insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules; (d) By other conduct that is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules; ... (f) Deliberately disregards an agreement or obligation to the lawyer as to expenses and fees.
(2) His continued employment is likely to result in a violation of a Disciplinary Rule.
(3) His inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal.
(4) His mental or physical condition renders it difficult for him to carry out the employment effectively.
(5) His client knowingly and freely assents to termination of his employment.
(6) He believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.
1.16:200 Mandatory Withdrawal
PA-R 1.16(a); Phila. Eth. Op. 92-8 (undated) (a lawyer shall withdraw from representation if he is discharged)
Client's right to discharge lawyer.
Parties may not circumvent the client's absolute right to terminate their lawyer. See Phila. Eth. Op. 87-1 (undated).
The client has the ultimate and unequivocal right to discharge and select counsel. See PA-R 1.16(a)(3); Phila. Eth. Op. 94-30 (1994) (if attorney leaves Firm A and client calls Firm A asking to speak with former attorney, Firm A must provide caller/client with new firm at which attorney is employed); see also Phila. Eth. Op. 94-30 (1994); Crabtree v. Academy Life Ins. Co. (E.D. Pa. 1995), aff'd. without op. 106 F.3d 384 (3d Cir. 1996) (client has absolute right to terminate attorney-client relationship regardless of contractual arrangement between client and attorney); Mulholland v. Kerns (E.D. Pa. 1993).
Mandatory withdrawal -- lawyer's physical or mental disability.
A lawyer shall not represent a client if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client. PA-R 1.16(a)(2).
A lawyer shall withdraw from representation if the representation will result in violation of the rules of Professional Conduct. PA-R 1.16(a); Phila. Eth. Op. 92-5 (undated) (since PA-R 3.1 prohibits an attorney from asserting frivolous claims, an attorney who is asked to assert such claims is required to terminate representation under PA-R 1.16(a)); Phila. Eth. Op. 90-13 (1990) (an attorney must withdraw if he would be in violation of PA-R 3.3 for knowingly failing to disclose a false statement of fact); Phila. Eth. Op. 89-29 (1990) (mandatory withdrawal for attorney whose representation of a client would place him in violation of Rule 1.7); Phila. Eth. Op. 95-3 (1995) (attorney may withdraw from representation if he concludes that his client's testimony is fraudulent or perjurious); see also Comment PA-R 1.16 (when attorney has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority); Responding to client perjury under the new Pennsylvania Rules of Professional Conduct: The Lawyer's Continuing Dilemma, Doris Del Tosto Brogan, 34 Vill.L.Rev. 63 (1989).
[The discussion of this topic has not yet been written.]
1.16:300 Permissive Withdrawal
A lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if the lawyer satisfies any one condition (1)-(6). PA-R 1.16(b).
[The discussion of this topic has not yet been written.]
Permissive withdrawal in absence of material adverse effect.
Withdrawal with client's consent.
Client's repugnant or imprudent course of conduct.
The lawyer may choose to terminate representation of a client if the client insists on pursuing an objective that the lawyer considers repugnant or imprudent. PA-R 1.16(b)(3).
Client's failure to pay lawyer.
See Phila. Eth. Op. 93-2 (1993) (failure to pay fees and expected costs of litigation presents a permissible basis for withdrawal, even though withdrawal may have an adverse effect on the client); see also Lincoln Ave. Industrial Park v. Norley (Super. Ct. 1996) (Attorney entitled to withdraw from representing client where client failed to make any payment for legal fees and was without reasonable prospect of being able to pay in future).
Client obstruction and irreparable breakdown of the relationship.
Pa. Rules of Prof. Conduct, Rule 1.16(b)(5) (1987) and ABA Model Code of Professional Responsibility (1969), DR 2-110(C)(1)(d), both allow an attorney to terminate representation if the representation has been rendered unreasonably difficult by the client. See Phila. Eth. Op. 94-10 (1994). (withdrawal appropriate where client failed to respond to attorney's repeated efforts to contact him, where efforts included: calling client, mailing letters to client, contacting two people familiar with client and hiring an investigator to locate client); PA-R 1.16(b)(5), Phila. Eth. Op. 94-10 (1994). A lawyer may terminate representation if client fails to sign agreed upon documentation necessary to consummate a claim. Phila. Eth. Op. 91-37 (1992).
Other good cause for withdrawal.
A lawyer may withdraw from a case if it will cause unreasonable financial burden. See PA-R 1.16(b)(5); Phila. Eth. Op. 89-22 (1989) (a lawyer may withdraw from a case where there is little or no hope of recovering a fee for services rendered).
1.16:400 Order by Tribunal to Continue Representation
A lawyer shall continue representation when ordered by a tribunal to do so, notwithstanding good cause for terminating the representation. See PA-R 1.16(c)..
1.16:500 Mitigating Harm to Client Upon Withdrawal
Duties to client on termination.
PA-R of Prof. Conduct, Rule 1.16(d) (1987) and ABA Model Code of Professional Responsibility (1969), DR 2-110(A)(2), both require that, upon termination, a lawyer take steps to the extent reasonably practicable to protect a client's interests. Such steps include: giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which client is entitled and refunding any advance payment of fee that has not been earned. See PA-R 1.16(d), DR 2-110(A)(2); Phila. Eth. Op. 92-8 (undated) (PA-R 1.16(d) requires the departing attorney and/or Former Firm to promptly communicate, with all Pre-Existing Clients, the attorney's departure from the Former Firm). Lawyers may not contract with clients to circumvent the requirement of PA-R 1.16(d). See Phila. Eth. Op. 88-4 (1988) (court rejected contingent fee arrangement because it gave the attorney the absolute right to withdraw from representation, in violation of 1.16(A), (B)); Pa. Eth. Op. 92-196 (1992) "law firm may not provide in its contingent fee agreement for withdrawal of firm at any time upon reasonable notice." see also Office of Disciplinary Counsel v. Geisler (1992) (attorney was charged with failing, upon withdrawal from employment, to promptly refund the unearned part of a fee paid in advance). DR 2-110(A)(3).
Protecting client's interests when representation ends.
Attorney may not disclose confidential information after termination or withdrawal. See Phila. Eth. Op. 94-8. The lawyer may not prejudice the client once representation ends. See Phila. Eth. Op. 90-25 (1991) (in order to not prejudice the client, the fired attorney should communicate that the statute of limitations on client's claim is rapidly expiring, and that the client's file is available); see also Conveying communications to former client (below). Protecting the interest of a client entails that the discharged attorney or firm do a variety of things. For example, it may entail reviewing and storing files which the client fails to retrieve after termination or withdrawal. Phila. Eth. Op. 88-17 (1988) (time period for which terminated attorney must store files depends on the nature of the case, the content of the file and the understandings reached by the parties).
When a lawyer withdraws or is discharged, the lawyer is required to maintain confidentiality of information provided by the former client. See Phila. Eth. Op. 94-8 (1994) (a lawyer engaged in joint representation may not disclose confidential information unless the client impliedly authorized the disclosure).
Former-client conflicts of interest.
Duty not to act for former client.
PA-R 1.16(d); Phila. Eth. Op. 90-25 (1991). (once lawyer has been fired, he may not act for former client).
Conveying communications to former client.
See Phila. Eth. Op. 94-8 (1988) (attorney required to hand over contents of client's files); Phila. Eth. Op. 93-22 (1994) (upon request by client, attorney should deliver all other material which is useful to client in benefitting fully from services he has purchased). Any doubt about whether materials in your client's file are subject to the Rules (1.16(d)) should be resolved in favor of your client. See Phila. Eth. Op. 93-22 (1994). However, the lawyer need not deliver his internal notes and memos which have been generated primarily for his own purposes in working on the client's problem. Phila. Eth. Op. 93-22 (1994); Phila. Eth. Op. 91-10 (1991) (law firm of A & B is obligated to return client files without qualification). Also, an attorney is obligated to return documents to third parties if they are provided with the understanding that they will be returned. See PA-R 4.4 (respect for rights to third persons). Termination and withdrawal after joint representation poses special problems concerning document return. See Phila. Eth. Op. 94-8 (1994); Phila. Eth. Op. 94-2 (1994). The limited exception which permits an attorney to retain client files is that the lawyer may retain client papers as security for an unpaid fee. Phila. Eth. Op. 91-10 (1991). However, an attorney may not compel payment by any means which unduly prejudice the client. Although PA-R 1.16(d) allows an attorney to withhold files if the client fails to pay fee, a lawyer may not withhold if doing so fails to reasonably protect the client's interest upon termination or withdrawal. PA-R 1.16(d); Phila. Eth. Op. 89-3 (1989) (the withholding of files should be used as a means of last resort). Phila. Eth. Op. 87-1 (undated) ("Pennsylvania also recognizes a "retaining lien." This is the right of an attorney to retain possession of documents, money or other property of a client coming into an attorney's possession by virtue of the professional relationship. Commonwealth v. Roman (Super. Ct. 1988); Commonwealth v. Scheps (Super. Ct. 1987); Novinger v. E.I. DuPont de Nemours & Co. (3d Cir. 1987); Crabtree v. Academy Life Ins. Co. (E.D. Pa. 1995), aff'd w/out op., 106 F.3d 384 (3d Cir. 1996); Mulholland v. Kerns (E.D. Pa. 1993). However, since a retaining lien may prejudice the former client, it should be used as a last resort." Phila. Eth. Op. 87-1 (undated); see also Pa. Eth. Op. 94-35 (1984) (where the lien would cause substantial prejudice to the client the lawyer should consider releasing the papers and bringing suit for unpaid fees); Commonwealth v. Scheps (Pa. Super. Ct. 1987) (for purposes of former disciplinary rule which holds that lawyer may request permission to withdraw when client "deliberately" disregards obligation to pay, term "deliberate" does not mean that failure must be done with vindictiveness, so long as it is intelligent, voluntary, and with full understanding as to reason for discharge).
1.16:600 Fees on Termination
• Primary Pennsylvania References:
PA Rule 1.16(d)
• Background References: ABA Model Rule 1.16(d), Other Jurisdictions
• Commentary: ABA/BNA §§ 31:701, 31:1001, 31:1101 , ALI-LGL §§ 43, 52, Wolfram § 9.5
Measure of compensation when client discharges lawyer.
Tribunal's allowance of contractual fee.
Measure of compensation when lawyer withdraws.
Forfeiture by withdrawing or discharged lawyer.
1.16:610 Termination of Lawyer's Authority [see 1.2:270]
[The discussion of this topic has not yet been written.]