No, there is no per se rule requiring a lawyer to withdraw from the representation after a client files a bar complaint. However, the filing of a disciplinary may give rise to a conflict of interest such that the lawyer’s continued representation would violate the Rules of Professional Conduct. See generally Mineo Salcedo Law Firm v. Cesard, No. 4D20-1761, 2022 Fla. App. LEXIS 204 (Fla. 4th Dist. Ct. App. Jan. 12, 2022). In such a case, the rules could require that the lawyer withdraw from the representation.
Concurrent Conflicts and Bar Complaints
A client has an absolute right to fire his lawyer at any time. See La. Rules of Professional Conduct, r. 1.16(a). The lawyer must withdraw from the representation if discharged by the client. See La. Rules of Professional Conduct, r. 1.16(a)(3). But, when an unhappy client files a bar complaint against the lawyer but does not discharge the lawyer, the lawyer must consider whether the Rules permit him to continue in the representation. Specifically, the lawyer must consider whether the filing of the disciplinary complaint creates a conflict of interest under Louisiana Rule of Professional Conduct 1.7. See La. Rules of Prof’l Conduct, r. 1.7. If so, the Rules may require the lawyer to withdraw from the representation. See La. Rules of Prof’l Conduct, r. 1.16(a)(3).
A lawyer has a conflict of interest if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” See La. Rules of Prof’l Conduct, r. 1.7(a)(2) (emphasis added). The potentially limiting interest when a current client files a bar complaint is the lawyer’s goal of avoiding discipline by the Bar. The filing of a bar complaint could also cause personal resentment on the part of the lawyer such that the lawyer would no longer be able to effectively represent the client. If the filing of the bar complaint creates a significant risk that the lawyer’s representation will be materially limited, the lawyer must obtain the client’s informed consent, confirmed in writing, to continue the representation. Further, the lawyer may only seek the client’s informed consent after concluding that the lawyer reasonably believes that he can still provide competent and diligent representation despite the conflict. If the client refuses to give consent, then the lawyer must withdraw from the representation.
However, if there is no significant risk that the lawyer’s representation of the client would be materially limited, then there is no conflict of interest under Rule 1.7. For this reason, the representation can continue without the lawyer needing to obtain the client’s informed consent.
The Florida Fourth Circuit Court of Appeals recently discussed the personal interest conflict which may arise after a current client files a bar complaint against a lawyer. See Mineo Salcedo Law Firm v. Cesard, No. 4D20-1761, 2022 Fla. App. LEXIS 204 (Fla. 4th Dist. Ct. App. Jan. 12, 2022); see also Organ Formal Opinion 2009-182 (Oct. 2009) (opining that a lawyer is not per se required to withdraw from further representation one a client has filed a bar complaint against the lawyer). In Mineo, a law firm was handling a first-party property claim brought against the plaintiff’s insurance carrier. The law firm received notice that their clients, the Cesards, filed a bar complaint against two of the firm’s lawyers. The Cesards filed the bar complaint after the firm worked on the Cesard’s case for almost two years and the firm’s lawyer’s recommendation that the Cesards accept a settlement offer from the insurer. The Florida Bar’s ethics hotline advised the firm’s senior partner to withdraw from the litigation as the filing of the Bar complaint created an irreconcilable conflict of interest necessitating withdrawal. The firm withdrew. The clients then settled the case using a new lawyer. The trial court treated the firm’s withdrawal as voluntary which impacted the costs and legal fees recoverable by the firm under Florida law. The issue on appeal in Mineo became whether the law firm should recover a fee from the clients considering the firm’s withdrawal from the case. The resolution of this issue turned on whether the firm’s withdrawal was voluntary or involuntary under the Rules of Professional Conduct. Said the court:
Here, the firm’s senior partner testified that an ethical conflict arose when the Cesards filed the Bar complaint following a disagreement over their refusal to accept a settlement offer. He argued that the specter of Bar sanctions stemming from the complaint loomed over the relationship, involuntarily placing the firm in a position where it could no longer render appropriate legal advice.
We take no issue with the firm’s belief that, under the circumstances, its withdrawal from representation in this civil case was prudent. Rule 4-1.7(a)(2) prohibits a lawyer from representing a client if “there is a substantial risk that the representation . . . will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by personal interest of the lawyer.” (Emphasis added). Despite the tendency of courts to apply this rule in the context of multiple client representation, by its own terms Rule 4-1.7 can apply to an attorney’s interaction with just one client. Additionally, Rule 4-1.7(b)(1) allows a lawyer to continue representing a client so long as “the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.”
Mineo, at 10-11. Importantly, the court recognized that the filing of a bar complaint may give rise to a personal interest conflict while reaffirming that such a bar complaint does not necessarily require termination of the representation. In order to resolve the fee dispute, the court needed to determine whether the client’s conduct necessitated the lawyer’s withdrawal from representation or whether it was the lawyer’s behavior that was adverse to his client’s interest and created the conflict. Ultimately, the appellate court remanded the matter back to the trial court to hear evidence on the issue whether the lawyer or the client bore responsibility for creating the lawyer-client rift.
The filing of a disciplinary complaint does not necessarily require the withdrawal of the lawyer. The client’s complaint to the bar, however, may cause the interests of the lawyer and the client to diverge thereby implicating Louisiana Rules of Professional Conduct r. 1.7. If the lawyer’s representation could be materially limited by his interest in avoiding discipline, he must obtain the client’s informed consent to continue the representation.