Bowing Out Professionally

1
Bowing Out Professionally

• Effective Settlements and How to Ethically
  Withdraw to Avoid Malpractice

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Withdrawal

• Prior to entry of appearance before a tribunal
  must comply with --
• Rule 4-1.16
• After entry of appearance must comply with
• Rule 4-1.16 and
• Any applicable law requiring notice to or
  permission of the tribunal
• Rule 4-1.16(c)

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Rule 4-1.16(c)
See Rule 4-1.2 for Scope of Representation and
Rule 55.03(b)(3) for limited entry of appearance
and termination of limited appearance

• (c) A lawyer must comply with applicable law
  requiring notice to or permission of a tribunal
  when terminating a representation unless the
  lawyer has filed a notice of termination of
  limited appearance. Except when such notice is
  filed, a lawyer shall continue representation
  when ordered to do so by a tribunal
  notwithstanding good cause for terminating the
  representation.

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Mandatory WithdrawalRule 4-1.16(a)

• The representation will result in violation of
  the rules of professional conduct or other law
• The lawyers physical or mental condition
  materially impairs the lawyers ability to
  represent the client or
• The lawyer is discharged.

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Permissive WithdrawalRule 4-1.16(b)

• (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 lawyers services that the lawyer
  reasonably believes is criminal or fraudulent
• (3) The client has used the lawyers services to
  perpetrate a crime or fraud

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Permissive WithdrawalRule 4-1.16(b)

• (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 lawyers
  services and has been given reasonable warning
  that the lawyer will withdraw unless the
  obligation is fulfilled

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Permissive WithdrawalRule 4-1.16(b)

• (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.

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Duties After WithdrawalRule 4-1.16(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.

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Duties After Withdrawal

• Still subject to Rules of Professional
  Responsibility
• See particularly --
• Rule 4-1.6 Confidentiality of Information
• Rule 4-1.9 Duties to Former Clients
• Rule 4-1.15 Safekeeping Property

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Actual Cases Discipline Imposed
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Actual Cases Discipline Imposed
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Actual Cases Discipline Imposed
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Actual Cases Discipline Imposed
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Actual Cases Discipline Imposed
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Informal Opinions

• Opinion Number 20060053 - Rule Number 
• QUESTION Attorney has reason to believe that a
  Trustee misappropriated, and perhaps stole, funds
  from a Trust. Since Attorney represented the
  Trustee, is Attorney permitted to notify and
  inform the other beneficiaries of the Trustee's
  management of the Trust and of Attorney's
  suspicions? To Attorney's knowledge, the other
  beneficiaries have received no information
  regarding the Trust, and they have not contacted
  Attorney.
• ANSWER Attorney may not disclose the information
  to the other beneficiaries, unless Attorney has
  the consent of the Trustee. If the Trustee will
  come forward with the necessary information,
  Attorney may continue to represent the Trustee in
  attempting to resolve any problems. It is
  permissible for Attorney to advise the Trustee
  that Attorney will withdraw if the Trustee is
  unwilling to take the steps Attorney believes to
  be necessary, including consenting to disclosure
  to the other beneficiaries. It is also
  permissible for Attorney to withdraw, at this
  point, regardless of the steps the Trustee is
  willing to take. If the Trustee is not willing to
  take the steps necessary to resolve the problem
  and Attorney believes that the Trustee's conduct
  is fraudulent or criminal, Attorney must withdraw
  if Attorney's representation would assist the
  fraudulent or criminal activity.

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Informal Opinions

• Opinion Number 20030049  - Rule Number 1.1
  1.16 
• QUESTION Attorney's law firm recently lost the
  attorneys in its litigation department and those
  attorneys are not able to continue to handle the
  litigation. Before leaving, one of the attorneys
  won a trial on a personal injury case. The case
  was reversed and remanded for new trial.
  Attorney's firm does not have anyone who can
  represent this client adequately. Attorney's firm
  has been unsuccessful in securing other counsel
  for the client. The case is not on a trial
  docket. May Attorney's firm withdraw under these
  circumstances? 
• ANSWER It is permissible for Attorney's firm to
  seek to withdraw, if you the firm can do so at a
  time that will not be materially adverse to the
  client. Whether a case is on a trial docket would
  be one factor in determining whether withdrawal,
  at a given time, will be materially adverse.
  However, there could be other factors to
  consider, such as discovery, court orders, etc.
  If there are no factors that will cause
  withdrawal to be materially adverse to the
  client, Attorney's firm may seek to withdraw,
  notwithstanding the fact that the client has been
  unable to find other counsel.Whether Attorney's
  firm is permitted to withdraw is entirely in the
  discretion of the court. If the court refuses to
  allow withdrawal, under Rule 4-1.16(c),
  Attorney's firm must stay in the case and
  represent the client. Attorney's firm should be
  sure to inform the court of its concerns about
  its ability to adequately represent the client,
  in the course of seeking leave to withdraw.

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Informal Opinions

• Opinion Number 20030047 - Rule Number 1.16(d)
  1.15 
• QUESTION If Attorney sends a client a courtesy
  copy of all pleadings at the time of filing and a
  copy of all pleadings filed by opposing counsel
  (with a notation that it is a courtesy copy for
  the client's information and safekeeping), is it
  necessary to copy the file and provide the
  documents again to the client? May attorney
  charge for copies of documents previously sent to
  client?
• ANSWER It is permissible for copies provided to
  the client during the course of the
  representation to serve as client's file, or a
  portion of the client's file, if two conditions
  are met. First, Attorney would have had to
  provide an explanation of this process prior to
  sending the copies. Second, the original of the
  file belongs to the client. Therefore, if there
  is an original in the file, a copy does not
  fulfill the obligation to the client unless the
  attorney and client have agreed that it will. If
  both conditions are not met, attorney should
  provide the file to the client and keep copies at
  Attorney's own expense.

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Informal Opinions

• Opinion Number 20030010 - Rule Number 1.16 
• QUESTION Attorney represented client in a matter
  which is now concluded. Attorney advanced funds
  for court reporter fees and transcripts. The
  client has requested copies of the transcripts,
  but has not reimbursed Attorney for these
  expenses. Must Attorney provide copies of the
  transcripts to the client?
• ANSWER Rule 4-1.16 requires Attorney to return
  the client's property to the client at the
  conclusion of the representation. However, under
  Formal Opinion 115, as amended, Attorney may
  withhold items for which Attorney has paid
  out-of-pocket and has not been reimbursed.

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Informal Opinions

• Opinion Number 20000172 - Rule Number 1.3
  1.16(b) 1.5 
• QUESTION Attorney would like to add a provision
  to Attorney's standard engagement letter for
  civil cases, particularly domestic relations
  cases. Is it permissible to state in the
  engagement letter that if the client does not
  make payment, Attorney will stop working on his
  or her case? Attorney would like to state that
  Attorney will not continue to work on a client's
  case if no payments are made.
• ANSWER Attorney may not include the provision
  Attorney proposes in Attorney's engagement
  letter. Under Rule 4-1.3, Attorney has an
  obligation to diligently represent Attorneys
  client, unless Attorney withdraws. If Attorney
  has not been paid, Attorneys option is to
  continue to diligently represent the client and
  seek payment, or seek to withdraw. Attorney may
  seek to withdraw under Rule 4-1.16(b), only if
  withdrawal may be accomplished without material
  adverse effect on the interests of the client.

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Informal Opinions

• Opinion Number 960110 - Rule Number 1.16 
• QUESTION Attorney represents a client in a
  matter which is set for hearing in several
  months. The client did not divulge certain
  information to Attorney which Attorney has now
  learned. If Attorney had been aware of this
  information, Attorney would not have taken the
  case. May Attorney seek to withdraw?
• ANSWER Attorney may withdraw, if Attorney is
  allowed by the tribunal to do so, as long as
  Attorney is not at a point in the proceedings
  such that the withdrawal will have a materially
  adverse effect on Attorneys client.

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Informal Opinions

• Opinion Number 950248 - Rule Number 1.16 
• QUESTION Attorney has lost contact with the
  clients. Attorney wishes to withdraw. What is
  Attorney required to do to notify the clients?
• ANSWER Attorney has a duty to take all
  reasonable steps to contact the clients. It is
  unclear from the information Attorney has
  provided whether Attorney has taken sufficient
  steps under the circumstances. Attorney is not
  required to hire a private investigator but
  Attorney should conduct a reasonable
  investigation. Attorney has not indicated whether
  Attorney has checked with various agencies or
  businesses that may have received notification of
  an address change. The Department of Revenue
  (drivers and motor vehicle licenses), employers,
  banks and relatives all may be appropriate to
  contact, depending on the circumstances. Attorney
  is not required to give notification to the
  clients by publication if Attorney is unable to
  contact them any other way, but Attorney may do
  so. Attorney should also seek guidance from
  Attorneys malpractice insurer's claims
  prevention office, regarding any additional steps
  they may recommend.

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Informal Opinions

• Opinion Number 940175 - Rule Number 1.165.24 
• QUESTION Attorney is the trustee in bankruptcy
  for an attorney who is now deceased. The deceased
  attorney had closed client files from many years
  of practice. What should the trustee do about the
  files?
• ANSWER Rule 5.24 provides a mechanism for
  appointment of a trustee to wind up the practice
  of a deceased attorney. That rule would not
  prohibit the bankruptcy trustee from also being
  the trustee for the practice. The attorney who is
  appointed trustee under Rule 5.24 should make an
  effort to return the files to the clients.

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Informal Opinions

• Opinion Number 940065 - Rule Number
  1.51.16(d) 
• QUESTION Attorney accepted a case on a flat fee
  basis. Attorney now wishes to withdraw before the
  case is concluded due to the client's lack of
  cooperation. Attorney states that, as a result of
  client's lack of cooperation, attorney fees
  valuing several times the flat fee paid have been
  provided. May Attorney withdraw and, if so, what
  amount of refund, if any, is owed the client?
• ANSWER Attorney may ask the court for leave to
  withdraw. This office cannot resolved factual
  issues such as the amount of a refund owed in the
  context of an informal advisory opinion.

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Informal Opinions

• Opinion Number 940059 - Rule Number
  1.41.16(d) 
• QUESTION Attorney is representing the class in a
  class action suit. One of the members of the
  class is recruiting class members and obtaining
  the attorney fee which is forwarded to Attorney.
  May Attorney accept these people as clients in
  this manner?
• ANSWER Yes. Once Attorney accepts them as
  clients, Attorney must communicate with them
  directly affirming Attorneys representation and
  communicating about the case before taking any
  action as their attorney. If they change their
  mind after direct communication, Attorney must
  refund the fee under Rule 4-1.16. This opinion
  does not consider any restrictions the court may
  impose.

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Informal Opinions

• Opinion Number 940038 - Rule Number 1.16 
• QUESTION Attorney and the client have disagreed
  over the amount of settlement that would be
  reasonable. As a result, the client has
  discharged Attorney twice but has returned when
  other attorneys told the client that Attorneys
  assessment of the case was reasonable. May
  Attorney withdraw?
• ANSWER Yes. Attorney must comply with all of the
  requirements of Rule 4-1.16(d), including the
  requirement that Attorney not withdraw if the
  withdrawal would have a materially adverse impact
  on the interests of Attorneys client.

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Informal Opinions

• Opinion Number 940027 - Rule Number 1.6 
• QUESTION Attorney's client is receiving
  Medicaid. Attorney has obtained agreement from an
  insurance company to settle a personal injury
  case. Statutes require both Attorney and client
  to notify Social Services of the settlement.
  Client has withdrawn authority to settle and
  discharged Attorney after Attorney informed
  client of this obligation. May Attorney report to
  Social Services?
• ANSWER If Attorney reports without client's
  consent, Attorney will violate the
  confidentiality obligation under Rule 4-1.6.
  Attorney should counsel client regarding the
  obligations under the statutes prior to
  withdrawing. If client will not consent to
  reporting, Attorney must remain silent and
  withdraw under Rule 4-1.16(a)(1).

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Informal Opinions

• Opinion Number 940019 - Rule Number 1.16 
• Question 1. May Attorney move to withdraw from a
  criminal case if the client is uncooperative and
  will not communicate or assist with the defense?
  The Attorney will warn the client that Attorney
  will withdraw if the situation doesn't improve
  before the Attorney actually withdraws.
• Question 2. If a client who is a criminal
  defendant fails to make a court date and a
  warrant is issued and the client has had no
  contact with Attorney for several weeks or
  months, may Attorney move to withdraw?
• ANSWER Yes to both questions. However, the fact
  that the Rules of Professional Conduct allow
  Attorney to move to withdraw does not affect the
  authority of the court to refuse to sustain that
  motion.

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Informal Opinions

• Opinion Number 940011 - Rule Number 1.16 
• QUESTION Attorney accepted a client in a
  dissolution case. Attorney accepted the retainer
  and the filing fee but has not filed. If Attorney
  returns the filing fee and retainer, may Attorney
  withdraw?
• ANSWER Yes.

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Informal Opinions

• Opinion Number 930099 - Rule Number 1.16 
• QUESTION May an attorney withdraw from a case
  due to the client's interference with the
  representation?
• ANSWER Yes. Attorney must comply with all of the
  requirements of Rule 1.16(d).

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In re Donaho 98 S.W.3d 871 (Mo. banc 2003)

• Donaho, licensed in both Illinois and Missouri
  agreed to represent Campbell in a
  post-dissolution action
• Campbell paid him 700 fee and 60 filing fee
• Donaho prepared the motion and sent it to
  Campbell, who promptly signed and returned it
• Donaho took no further action

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In re Donaho 98 S.W.3d 871 (Mo. banc 2003)

• Six months later Donoho closed his Illinois
  office and opened a new office in St. Louis
• Did not inform Campbell of new address or
  telephone number
• Campbell
• Left messages on Donahos home phone which he did
  not return
• Tried to contact him at new office and he did not
  respond
• Send certified letter to new office, which he
  received but did not respond

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In re Donaho 98 S.W.3d 871 (Mo. banc 2003)

• Campbell demanded return of fee
• Donaho responded that he would return the fee if
  Campbell signed a complete release
• Donaho drafted the release, but did not advise
  Campbell to seek independent advice
• Campbell signed and returned the release
• Donaho failed to return the money as promised

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In re Donaho 98 S.W.3d 871 (Mo. banc 2003)

• Campbell filed suit in small claims and obtained
  a default judgment for 765, which Donaho did not
  pay
• Campbell filed complaint with OCDC
• Disciplinary committee indicated to Donaho that
  timely payment of the judgment would be
  considered a mitigating factor and would be
  viewed favorably if satisfied by a certain date
• Donaho faxed copies of two money orders made out
  to Campbell and represented that they had been
  sent to Campbell
• Committee admonished Donaho and closed file
• Instead of mailing the money orders to Campbell,
  however, Donaho cashed them for his own use

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In re Donaho 98 S.W.3d 871 (Mo. banc 2003)

• Campbell filed second complaint with OCDC
• Among the rule violations the committee included
  in the charge was a violation of Rule 4-1.16(d)
• Supreme court stated As noted in the
  disciplinary rules, perhaps no professional
  shortcoming is more widely resented than
  procrastination. Rule 4-1.3, Comment. Of course,
  the fact that Respondent failed to refund the
  advance fee upon the termination of
  representation as required by Rule 4-1.16(d)
  compounds the problem.
• Supreme Court suspended Donahos license
  indefinitely with leave to apply for
  reinstatement no sooner than twelve months after
  date of opinion
• Supreme Court noted in passing that the
  evidence suggests that Donaho may have been
  suffering from a drinking problem during the time
  in question

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In the Interest of P.D. 144 S.W.3d 907 (Mo.App.,
E.D. 2003)

• Lawyer represented natural mother in termination
  of parental rights case
• Hearing on September 23
• Mother was present
• Case set for trial on December 17
• Lawyer sent mother letter confirming trial date
• Date of trial Mother did not appear
• Lawyer moved for continuance, which court denied
• Lawyer orally moved to withdraw, which court
  sustained

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In the Interest of P.D. 144 S.W.3d 907 (Mo.App.,
E.D. 2003)

• On appeal mother claimed trial court abused its
  discretion is allowing her lawyer to withdraw
• Eastern District, citing Rule 4-1.16 and a local
  court rule, held that trial court abused its
  discretion because there was nothing in the
  record that lawyer had provided mother with
  notice of his intent to request to withdraw
• Judgment of termination was reversed

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Effective and Ethical Settlements

• Rule 4-1.2
• A lawyer shall abide by a clients decisions
  concerning the objectives of the representation
• A lawyer shall abide by a clients decision
  whether to settle a matter
• Comment 3 At the outset of the representation,
  the client may authorize the lawyer to take
  specific action on clients behalf without
  further consultation

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Effective and Ethical Settlements

• Rule 4-1.4 requires that the lawyer explain a
  matter to the extent reasonably necessary to
  permit the client to make informed decisions
  regarding the representation
• Interplay between Rule 4-1.2 and 4-1.4
• Clients decision whether or not to settle a case
  must be an informed decision

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Effective and Ethical Settlements

• Rule 4-4.1 prohibits a lawyer from making a false
  statement of material fact to a 3rd person while
  representing a client
• What about false statements made by counsel
  during a settlement negotiation?
• Comment 2 Under generally accepted conventions
  in negotiation, certain types of statements
  ordinarily are not taken as statements of
  material fact (e.g., estimates of value or the
  clients intentions as to an acceptable
  settlement of a claim)

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In re Coleman, 295 S.W.3d 857 (Mo. banc 2009)

• Client hired Coleman to represent her in 3
  separate civil actions (med. malpractice,
  wrongful term. and discrimination cases)
• During next 5 years, client paid Coleman up to
  50,000 in fees and expenses.
• When client no longer able to pay additional
  fees, Coleman suggested converting the 3 cases to
  contingent fee agreements. Client agreed.

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In re Coleman

• In consideration of one-third (1/3) of any
  recovery, I agree to forego my hourly rate, and
  instead, agree to accept one-third of any
  recovery. However, because I am taking a risk
  with you on this case, and because I am more
  familiar with the legal trends relative to
  judgments, settlements, and summary disposition,
  you agree I shall have the exclusive right to
  determine when and for how much to settle this
  case. That way, I am not held hostage to an
  agreement I disagree with.

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In re Coleman

• The employer in the discrimination case offered
  to settle the clients claim for 20,000. The
  client rejected the offer.
• Coleman settled the case without his clients
  consent. Coleman submitted settlement documents
  to the client. Client refused to sign and
  insisted on proceeding to trial.
• Coleman withdrew in all 3 cases and filed a
  motion to enforce settlement in the
  discrimination case.

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In re Coleman

• Violations found by the Court
• Rule 4-1.2 (Scope of Representation) by accepting
  a settlement offer without client consent and
  filing a motion to enforce the settlement
• Rule 4-1.7 (Conflict of Interest) by entering
  into a written agreement with his client
  purporting to give Coleman exclusive settlement
  rights and taking actions adverse to the clients
  interests
• Rule 4-1.16 (Terminating Representation) by
  failing to protect his clients interests upon
  termination
• Rule 4-8.4 (Misconduct) by engaging in conduct
  prejudicial to the administration of justice.
• Discipline ordered one year stayed suspension
  with probation.

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Questions?