Topic: Legal Malpractice
Illinois RPC 1.16 governs the end of the attorney-client relationship.
RULE 1.16: DECLINING OR TERMINATING REPRESENTATION
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) 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.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, 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 expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
Adopted July 1, 2009, effective January 1, 2010.
Comment: There are several things to remember. First, the client always has the right to terminate the attorney-client relationship at any time and for any reason. Second, the lawyer may be required to withdraw if (a) there is a disagreement between the lawyer and the client or the client persists in urging some wrongful or illegal conduct by the lawyer. Third, the burden is on the lawyer to show that there was good cause for the withdrawal. This means the lawyer should retain a written record of why the relationship went bad and why the lawyer quit. Even a memo to the file is better than nothing. Best of all is a letter to the client explaining why the lawyer quit.
Where the lawyer is before a court or other tribunal, the lawyer must file a motion to withdraw. It is very important that that motion be as cryptic as possible and not reveal any confidences or harm the client in any way.
Lawyers tend to run afoul of subsection (d) which requires the lawyer to give reasonable notice to the client, return the client’s property and allow time for employment of successor counsel. Remember the duty is on the lawyer to "take steps reasonably practicable to protect a client’s interests." This may mean that the lawyer should obtain an extension of time to file any legal briefs that may be due. It may mean that the lawyer should complete the work that is pending. This is a judgment call and requires careful thought by the lawyer.
Edward X. Clinton, Jr.
This is a summary of Illinois Rule of Professional Conduct 1.16, which deals with the termination of the attorney-client relationship.