(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)). Note that a lawyer who withdraws with permission of the tribunal under Rule 1.16(c) must also comply with Uniform Rule for Louisiana Courts Rule 9.13. See Berwick v. Berwick, 2015 La. App. Unpub. LEXIS 501, *10 (La. Ct. App. 3rd Cir. 2015); see also Jackson v. Fedex Corporated Servs., 165 So. 3d 206, 208 (La. Ct. App. 4th Cir. 2015) (holding that rule 9.13 of the Uniform Rules of Louisiana Courts and the Louisiana Rules of Professional Conduct require, a lawyer to notify client of withdrawal and the status of the case in writing.).

Under paragraph (d), once a lawyer has decided to withdraw from an ongoing representation, the lawyer must take whatever steps are 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); see also Blank v. Equisol, L.L.C., 2015 La. App. Unpub. LEXIS 305, *8 (La. Ct. App. 1st Cir. June 18, 2015) (finding that lawyer’s motion to withdraw filed ten months before the trial date was “more than sufficient for [client] to hire new counsel”). Also, a discharged lawyer with a fee lien may not hold a client’s settlement proceeds hostage to further the lawyer’s self-interest. In In re Williams-Bensaadat, No. 2015-B-1535 (La. Nov. 6, 2015), the court suspended a lawyer for refusing to endorse a settlement check in an effort to force a resolution of her fee claim.

Obligation to Return Client File

A lawyer must surrender to the lawyer’s client all papers and property to which the client is entitled, and refund any fees that have been paid but not yet earned. See, e.g., Edwin K. Hunter, APC v. Blazier, 2016 La. App. LEXIS 1812 (La. Ct. App. 3rd Cir. Oct. 5, 2016) (finding that a file is the client’s property, and the client’s interests in it supersedes the lawyer’s interests); 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 Guste, 185 So. 3d 740 (La. 2016) (suspending lawyer for failing to return client’s file and refund unearned fees after several other similar disciplinary matters); In re Bolton, 2016 La. LEXIS 1800 (La. Sept. 23, 2016) (suspending lawyer for failing to timely return an original will to client); 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) (disciplining lawyer for failing to return three clients’ files upon termination of representation); In re Salinas, No. 1016-B-1381, 2016 WL 6080375 at 1* (E.D. La. October 17, 2016) (suspending lawyer for failure to return client’s file upon request, among other reasons); In re Renfroe, 800 So. 2d 371, 373 (La. 2001) (disciplining lawyer under this paragraph for failing to return unearned portion of fee at termination); In re Turnage, 790 So. 2d 620 (La. 2001) (finding violation of Rule 1.16 (d) where lawyer failed to comply with client’s requests for file). A lawyer may not hold a client’s file “hostage” and demand payment of outstanding costs related to the matter or to copying the file before turning over the file.

As to what constitutes “the file,” a formal opinion from the ABA Standing Committee on Lawyers’ Professional Responsibility has clarified what files, papers, and property must be surrendered to the lawyer’s client. See ABA Formal Op. 471 at 3 ( Jul. 1, 2015). Most jurisdictions, and the Restatement of Law (Third) Governing Lawyers, require a lawyer to surrender the “entire file” of the client—namely, all documents “possessed by the lawyer relating to the representation, unless substantial grounds exist to refuse.” See id. at 3; Restatement of the Law (Third) the Law Governing Laywers § 46 (2000). The entire-file approach “assumes that the client has an expansive general right to materials related to the representation and retains that right when the representation ends.” See ABA Formal Op. 471 at 3.

Notwithstanding this broad principle, a lawyer need not produce every scrap of paper and every bit of electronic information in the lawyer’s possession relating to a client’s matter. Among other materials, a lawyer typically need not surrendering the following:

  • materials that would violate a duty of nondisclosure to another person;
  • materials containing a lawyer’s assessment of the client;
  • materials containing information which if released could endanger the health, safety, or welfare of the client or others; and,
  • documents reflecting only internal firm communications and assignments.

See Formal Op. 471 at 3. “Internal” firm documents prepared for administrative purposes could include documents relating to matters such as:

  • conflicts checks and potential conflicts of interest;
  • the client’s creditworthiness;
  • firm personnel or staffing matters; and,
  • ethics consultations within the firm or with outside experts.Id. at 4-6. Such documents are not subject to surrender because they are “generated for internal use primarily for the lawyer’s own purpose in working on the [client’s] matters.” Id. Note, however, that surrendering these types of documents may be necessitated by compelling circumstances, such as to avoid causing harm to the client in on-going litigation. Id. at 6.

Note that 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.

Disclosing Confidential Information in a Motion to Withdraw

A lawyer who seeks to withdraw from the representation of a client involved in litigation typically must seek permission of the presiding tribunal to do so. Indeed, Louisiana Rule 1.16, governing withdrawal and termination of representation, provides that “a lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation.” See La. Rules of Prof’l Cond. R. 1.16(c). To obtain such permission, a lawyer sometimes must disclose the reasons why the court should permit withdrawal notwithstanding the ongoing litigation. Such a disclosure can involve confidential information, such as that the client has violated the law, that the client has failed to pay the lawyer’s invoices, or that the lawyer would have a conflict of interest in continuing the representation. Rule 1.6(b) permits such disclosures to the extent “reasonably necessary” to comply with law or to respond to “allegations” concerning the lawyer’s representation of the client. See id. R. 1.6(b)(5-6). However, there are limits as to what a lawyer can and cannot disclose in attempting to withdraw. To balance the client’s interest in confidentiality with the tribunal’s interest in making an informed decision on a motion to withdraw, an ABA formal opinion1 advises a lawyer seeking to withdraw as counsel of record to do the following:

  1. First, the lawyer should submit a motion to withdraw that discloses no client information other than, perhaps, a reference to the need to withdraw for “professional considerations.” In addition, the lawyer may disclose the procedural steps taken prior to filing the motion, such as providing notice to the client. The lawyer may also update the court on the procedural status of the litigation. Id. at 9.
  2. If the court insists on additional information, the lawyer should then “seek[] to persuade the court to rule on the motion without requiring the disclosure of confidential client information,” and assert “all non-frivolous claims of confidentiality and privilege.” Id.
  3. If the court still insists on receiving additional information before ruling on the motion to withdraw, then the lawyer should, pursuant to Rule 1.6(b)(5), provide “only such information as is reasonably necessary to satisfy the needs of the court and preferably by whatever restricted means of submission, such as in camera review under seal, or such other procedures designated to minimize disclosure as the court determines is appropriate.” Id.
  4. Finally, if the court “expressly orders” the lawyer to make full, public disclosure of the otherwise confidential information, then Rule 1.6(b)(6) would permit the disclosure to allow the lawyer “to comply with a court order.” Id.

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 lawyer’s continued representation while ineligible to practice law violated Rules 1.16(a) and 1.16(d)); In re Polk, 174 So. 3d 1131, 1135 (La. 2015) (imposing discipline for practicing law while ineligible). 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. 2009); In re White, 706 So. 2d 964 (La. 1998); American Gen. Inv. Corp. v. St. Elmo Lands, 391 So. 2d 570, 573 (La. Ct. App. 4th Cir. 1980); In re Gilbert, 185 So. 3d 734 (La. 2016). 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 Rule 1.16(a)(3) gives “the client the absolute right to fire a lawyer in whom he has lost faith or confidence” and prevails over section 9:2448(b)(2) to preserve the court’s power and responsibility to define and regulate the practice of law).

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 January 26, 2017.

  1. See ABA Std’g Comm. on Ethics & Prof’l Resp., Formal Op. 476 (Dec. 19, 2016) (“Confidentiality Issues when Moving to Withdraw for Nonpayment of Fees in Civil Litigation”).

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