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. Upon written request by the client, the lawyer shall promptly release to the client or the client’s new lawyer the entire file relating to the matter. The lawyer may retain a copy of the file but shall not condition release over issues relating to the expense of copying the file or for any other reason. The responsibility for the cost of copying shall be determined in an appropriate proceeding.

Background

The Louisiana Supreme Court adopted this rule on January 20, 2004. It became effective on March 1, 2004, and has not been amended since.

Paragraphs (a) through (c) are identical to ABA Model Rule of Professional Conduct 1.16(a-c) (2002).

Paragraph (d) is identical to the model rule, with the additional language set forth in the last three sentences (beginning with: “Upon written request . . . .”). This language, initially adopted by the Louisiana Supreme Court in 2001, clarifies that client files belong to clients, and that lawyers must promptly and unconditionally return any client files upon request.

Comments to ABA Model Rule 1.16

Generally

[1] A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion. Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. See Rules 1.2(c) and 6.5. See also Rule 1.3, Comment [4].

Mandatory Withdrawal

[2] A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation.

[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 6.2. Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation. Difficulty may be encountered if withdrawal is based on the client’s demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3.

Discharge

[4] A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services. Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances.

[5] Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring self-representation by the client.

[6] If the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client’s interests. The lawyer should make special effort to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 1.14.

Optional Withdrawal

[7] A lawyer may withdraw from representation in some circumstances. The lawyer has the option to withdraw if it can be accomplished without material adverse effect on the client’s interests. Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer’s services were misused in the past even if that would materially prejudice the client. The lawyer may also withdraw where the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.

[8] A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation.

Assisting the Client upon Withdrawal

[9] Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law. See Rule 1.15.

Annotations

Generally

This rule is organized as follows: paragraph (a) addresses those circumstances under which a lawyer must terminate representation; paragraph (b) addresses when a lawyer may terminate representation; paragraph (c) addresses when a lawyer must not terminate representation, namely when a tribunal orders the lawyer to continue the representation; and, paragraph (d) addresses a lawyer’s obligations upon termination of the representation.

Under paragraph (a), a lawyer must decline (or terminate) representation if the representation will result in a violation of the ethics rules or the law, if the lawyer’s representation is or would be impaired by a physical or mental condition, or if the client discharges the lawyer. Nevertheless, the lawyer must continue the representation if so ordered by a tribunal.

Under paragraph (b), a lawyer may withdraw from representation at any time if the lawyer can do so without material adverse effect on the interests of the client. Furthermore, a lawyer may withdraw, even when doing so would adversely affect the client, if any of the following circumstances exist: the client persists in using the lawyer’s services, or has used the lawyer’s services in the past in connection with a crime or fraud; the client insists on pursuing a repugnant or imprudent objective; the client has persistently refused to pay the lawyer’s fees or costs; the representation has become an unreasonable financial burden to the lawyer; the client has made the representation unreasonably difficult; or “other good cause for withdrawal exists.” Notwithstanding a basis for permissive withdrawal, the lawyer must continue to represent the client if so ordered by a tribunal.

Under paragraph (c), a lawyer must continue to represent a client when ordered to do so by a tribunal, even though grounds exist for either mandatory or permissive withdrawal. A trial court’s decision to grant or deny a motion to withdraw is a matter left to the court’s sound discretion. See WSF, Inc. v. Carter, 803 So. 2d 445, 448 (La. Ct. App. 2d Cir. 2001); see also Hill v. Tanner, No. 12-369, 2012 WL 4059899 at *6 (E. D. La July 5, 2012) (denying lawyer’s request to withdraw after disclosure of client’s criminal activity pursuant to Rule 3.3(b)).

Under paragraph (d), once a lawyer has decided to withdraw from an ongoing representation, the lawyer must take whatever steps necessary to protect the client’s interests. For example, the lawyer must give the client reasonable notice and opportunity to hire substitute counsel. See In re Gaharan; 6 So. 3d 745, 748-49 (La. 2009) (suspending lawyer for failure to inform client and court of the lawyer’s withdrawal from client’s bankruptcy proceeding).

Obligation to Return Client File

The lawyer must surrender to the client all papers and property to which the client is entitled, and refund any fees that have been paid out not yet earned. See, e.g., In re McNeely; 98 So. 3d 275, 279 (La. 2012) (suspending a lawyer for failure to properly withdraw from representation and failure to return client’s file and unearned fee); In re Wharton, 964 So. 2d 311, 315-316 (La. 2007) (disbarring a lawyer for failure to return unearned fees and failure to return a client’s file subsequent to a three-year suspension for similar misconduct); In re Hyman, 958 So. 2d 646 (La. 2007); In re Renfroe, 800 So. 2d 371, 373 (La. 2001) (disciplining a lawyer under this paragraph for failing to returned unearned portion of the fee at termination); In re Turnage, 790 So. 2d 620 (La. 2001) (finding a violation of Rule 1.16 (d) where lawyer failed to comply with client’s requests for file). The lawyer may not hold the file “hostage” and demand payment of outstanding costs related to the matter or to copying the file before turning over the file.

Note under Civil Code article 3496, “[a]n action by a client against an attorney for the return of papers delivered to him for purposes of a law suit is subject to a liberative prescription of three years. This prescription commences to run from the rendition of a final judgment in the law suit or the termination of the attorney-client relationship.” See La. Civ. Code art. 3496.

Mandatory Withdrawal to Avoid Violation of Rules or Law

Paragraph (a) requires a lawyer to withdraw from a representation when continued representation “will result in violation of the rules of professional conduct or other law.” La. Rules of Prof’l Conduct R. 1.16(a)(1) (2004). To avoid violating Rule 1.16(a), a lawyer should withdraw from an engagement once a lawyer is ineligible to practice. See In re Thomas, 115 So. 3d 466, 472 (La. 2013) (finding a lawyer’s continued representation while ineligible to practice law a violation of the Rules of Professional Conduct). Note that a lawyer may have addition obligations upon learning that a client has used the lawyer’s services to violate the law.

Mandatory Withdrawal Upon Discharge by Client

A lawyer must withdraw from representing a client once the client has instructed the lawyer to do so. See, e.g., In re Cooper; 23 So. 3d 886 (La. 2012); In re White, 706 So. 2d 964 (La. 1998); American Gen’ l Inv. Corp. v. St. Elmo Lands, 391 So. 2d 570, 573 (La. Ct. App. 4th Cir. 1980). A lawyer designated in a will as the lawyer for the executor must withdraw if directed to do so by the executor. Although Louisiana Revised Statutes section 9:2448 provides that such an attorney may be discharged only for “just cause,” Louisiana jurisprudence holds that a client’s right to discharge an attorney at any time nonetheless controls. See Succession of Wallace, 574 So. 2d 348, 355 (La. 1991) (recognizing that section 9:2448(b)(2) is in conflict with Rule 1.16 (a)(3) but holding that “the statute must yield to the rule”).

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving a lawyer’s duty to withdraw properly from representation: disbarment, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system; suspension, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; reprimand, when the lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; and, admonition, when the lawyer engages in an isolated instance of negligence that is a violation of a duty owed to the profession, and causes little or no actual or potential injury to a client, the public, or the legal system. See ABA Stds. for Imposing Lawyer Sanctions stds. 7.1-7.4 (1992).

Notes

This page was updated on August 1, 2013.