The Duty to Inquire and Assess

Mandatory Withdrawal

The Duty to Inquire and Assess

Rule 1.16(a) opens with an affirmative command rather than a prohibition: a lawyer shall inquire into and assess the facts and circumstances of each representation to determine whether she may accept or continue it.¹ The duty falls on the lawyer because she holds the facts that decide the question. She knows whom she has served before, whether her own health will let her do the work, and what the client actually wants done. A rule that waited for someone else to complain would act only after the harm had reached a client, a court, or a third party.

The same assessment runs at two moments, and the rule's second sentence folds both into one command. Except as paragraph (c) provides, a lawyer shall not represent a client or, where the representation has commenced, shall withdraw if a listed ground exists.² The grounds are the same either way. Only the required act changes, from declining before the relationship forms to withdrawing once it has. Because the rule asks whether she may accept or continue, the inquiry cannot be a single checkpoint at intake. A ground can exist on the first day or arise later.

The later case is the delicate one. A lawyer may begin a matter believing the client's course of action is legally proper and then discover that it is criminal or fraudulent. She may not keep assisting that conduct.³ She also may not reveal the client's wrongdoing except where Rule 1.6 permits, but she must avoid furthering the client's purpose, for example by suggesting how it might be concealed.⁴ When she knows that a client expects assistance the rules do not permit, she must consult the client about the limits on her conduct.⁵ That consultation is the discussion the fourth mandatory ground, below, presupposes.

In the first scene, what the lawyer learned matched a listed ground. In the second, nothing did. The duty to assess is a duty to look, and it produces a refusal or a withdrawal only when what she finds matches a ground the rule names. On an exam, though, a failure to look can itself be the issue. A fact pattern in which no one complains and no one asks about the lawyer's conflicts or capacity does not relieve her of the duty, because the obligation to inquire has no trigger.

The opening phrase of the second sentence, except as stated in paragraph (c), warns that a lawyer with a mandatory ground may not be free to leave at once.⁶ A later section takes up that paragraph and the role of the tribunal. For now, treat the mandatory grounds as the starting point of the analysis, not the last word.

The rule lists four grounds. The first is that the representation will result in violation of the Rules of Professional Conduct or other law.⁷ The second is that the lawyer's physical or mental condition materially impairs her ability to represent the client.⁸ The third is that the lawyer is discharged.⁹ The fourth is that the client or prospective client seeks to use or persists in using the lawyer's services to commit or further a crime or fraud, despite the lawyer's discussion under Rules 1.2(d) and 1.4(a)(5) about the limits on what she may do.¹⁰ Each ground stands alone, and any one is enough to trigger the duty. The next section takes them in turn.