Representing your client can often be a delicate balance, especially when your client is difficult or unpredictable. There are circumstances under which an attorney is required to withdraw from representation.1 In other circumstances, attorneys may withdraw from representation if the withdrawal can be accomplished without material adverse effect on the interests of the client.2
Attorneys will inevitably encounter situations requiring or permitting withdrawal. Screening potential clients, setting client expectations, and communication are key to setting an outline for success. However, sometimes withdrawal cannot be avoided.
Proactive Ways to Avoid Fundamental Client Disagreements
While turning away a client that an attorney believes has a strong case is not ideal, there may be situations when declining representation is best for everyone involved.
The initial client screening is an important tool to obtain insight on the client’s goals, expectations, personality, and your fit with the potential client. There may be obvious clues, such as a client who demands that you assist them in committing fraud, or one who is angry and hostile toward you.
Jennifer M. Schank, U.W. 2010, is a shareholder with
Fuhrman + Dodge S.C. in Middleton, where she focuses her practice on debtor/creditor rights, bankruptcy, collections, litigation, and real estate matters.
Frequently, declining representation is a more difficult decision for an attorney to make. There may be a sense of disagreement or that the potential client has unreasonable expectations. The attorney should ask more questions to determine whether the prospective client is a good fit. If you and your client are not on the same page at the onset of the representation, then maybe the client is not a good fit.
Once an attorney and client decide they wish to work together, the attorney should discuss the legal representation agreement with the client. Emphasizing the scope of the representation, fees and payment requirements sets client expectations.
Then, throughout the representation, communication is key. Send the client written communications after you have had an important case discussion with your client, or if a key event has occurred in the representation. The Professional Rules of Conduct require that an attorney must keep their client informed.3 An attorney must explain matters to the client so that the client can make informed decisions. Such advice should explain all facets of the legal issue so that the client understands the risks and likelihood of success.
Additionally, an attorney must keep the client updated throughout the case. Therefore, keeping a record of when and how you informed your client is crucial. Further, if you informed your client of a legal issue and they make a decision that you did not recommend, communication in writing to the client will be helpful to both you and the client. You can summarize the risks of the client’s decision and explain to the client that despite the risks, the client chose to proceed in a manner that you did not recommend.
Duty to Abide by Client Decisions
The Professional Rules of Conduct require an attorney to abide by a client’s decision concerning the objectives of representation as required by SCR 20:1.2.
Some decisions, such as whether to settle a case or enter a plea agreement in a case, are the ultimate decision of the client. An attorney may have implied authority to make decisions about procedural or technical matters, such as obtaining a discovery request deadline. Agreeing on who has the authority to decide strategy regarding dispositive motions, witnesses, or litigation strategy can be more difficult issues to tackle.
When Is a Disagreement Grounds for Withdrawal?
When a disagreement between you and your client arises, you need to determine whether you must withdraw.
SCR 20:1.16 – Declining or terminating representation.
I. Mandatory Withdrawal
SCR 20:1.16(a) Attorney
shall withdraw 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.
II. Permissive Withdrawal
SCR 20:1.16(b) Attorney
may withdraw 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.
If a client fires their attorney, the attorney can inform the court of this. However, if the attorney seeks to withdraw, the attorney cannot breach client confidentiality or adversely affect the client’s interests in their motion to withdraw from representation.
If you decide to withdraw, avoid providing too much information or attaching supporting documents that may reveal information hurtful to the client’s interests or breach attorney-client privilege.
You should cite The Rules of Professional Conduct in your Motion to Withdraw to avoid disclosing sensitive information and draft your motion to withdraw as concisely as possible.
Lastly, ask another attorney at your office to review your motion to withdraw.
Conclusion
An attorney has many professional duties when representing a client. Initial client screening and setting expectations are important steps to the client’s representation. During the representation, an attorney’s communication to their client is both required by the Professional Rules of Conduct and necessary to maintain the attorney-client relationship.
If withdrawal becomes necessary or inevitable during the representation, the attorney must take steps to protect the client’s interests during the withdrawal and transition of representation.
This article was originally published on the State Bar of Wisconsin’s
Agriculture Law and Rural Practice Blog of the Solo/Small Firm & General Practice Section. Visit the State Bar
sections or the
Solo/Small Firm & General Practice Section webpages to learn more about the benefits of section membership.
Endnotes
1
See SCR 20:1.16(a).
2
See SCR 20:1.16(b).
3
See SCR 20:1.2 and 1.4.
