Concept
Mandatory Versus Permissive Withdrawal
Mandatory withdrawal: when the lawyer must decline or end the representation
Mandatory Versus Permissive Withdrawal
One verb separates the lawyer who must leave from the lawyer who may leave. Rule 1.16(a) says a lawyer shall not represent a client, or shall withdraw once the representation has begun, when a listed ground exists. That command makes the four grounds above mandatory.1 The remaining reasons for ending a representation fall under the paragraph that follows, which says only that a lawyer may withdraw.
As the rule has long been worded, the permissive paragraph covers a client who insists on action the lawyer considers repugnant or with which the lawyer has a fundamental disagreement. It also covers a client who fails substantially to fulfill an obligation to the lawyer after reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.2 Commentators read RPC 1.16 as permitting withdrawal in two circumstances: for any reason, so long as the client suffers no material adverse effect, and for good cause, such as financial hardship, even when the client does suffer one.3 Nonpayment, repugnance, and financial strain are the exam's favorite traps. Each sounds weighty enough to force a lawyer out, and none does.
A rough test sorts the two lists. The mandatory grounds describe a representation that cannot properly go on: it would violate the rules or the law, the lawyer cannot do the work, the client has ended the relationship, or the client is using the lawyer's services for crime or fraud. The permissive grounds describe a representation that can go on but has become unpleasant or costly for the lawyer. The permissive paragraph also shows concern for the client. Withdrawal that causes the client no material adverse effect needs no special reason, and withdrawal that does harm the client needs good cause.4
A stem about a client who has stopped paying asks whether the lawyer must withdraw. The answer depends on what else the client has done.
The unpaid balance is the same in both scenes, and it decides neither outcome. In the first, the debt gives the lawyer an option, conditioned on a reasonable warning that she will withdraw unless the client meets the obligation.5 In the second, the client's termination discharges the lawyer, and the rule lists discharge as a mandatory ground with no qualifier about the client's reasons.6 A client who is behind on fees but wants the lawyer to continue gives the lawyer a choice. A client who ends the relationship gives the lawyer a duty, subject to paragraph (c), which the next section takes up.
The same contrast governs a client's objectives. A client who insists on a strategy the lawyer finds repugnant, or with which the lawyer fundamentally disagrees, hands the lawyer a reason she may act on, not one she must.7 A client whose strategy cannot lawfully go forward changes the analysis. The representation will then result in a violation of the rules of professional conduct or other law, and the first mandatory ground applies.8
Crime and fraud show the mandatory category at full strength. The comment states the baseline: if the client will use the lawyer's services in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw under Rule 1.16(a)(1).9 The rule also names the client or prospective client who 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) of the limits on what the lawyer may do to assist.10 The sorting move never changes. Find the ground in the version of the rule in front of you, read its verb, and ask whether the facts match a ground under shall or only one under may.
Even when a ground is permissive, the option to leave does not carry itself out. The rule's mandatory grounds open with an exception ('Except as stated in paragraph (c)'), and a permitted withdrawal from a pending case still meets limits of its own. In Haines v. Liggett Group, the court addressed RPC 1.16 and the commentators' two-circumstance reading of it. It explained that even if withdrawal is otherwise appropriate, other considerations must sometimes take precedence, such as fairness to litigants and a court's resources and efficiency.11 Good cause therefore gives the lawyer a reason to ask, and it does not bind the court to say yes. Matters such as how near trial is and whether the client can find other counsel show how fairness and efficiency play out in a pending case.