Appointment Versus Withdrawal

Two rules answer the question whether a lawyer may get out of a matter, and the one that applies depends on when the lawyer asks. Rule 6.2 governs the moment of appointment, when a tribunal assigns the matter and the lawyer decides whether to take it; it forbids the lawyer to seek to avoid the appointment except for good cause.¹ Rule 1.16 governs the lawyer who has already undertaken the representation and now wants to leave, chiefly through the permissive withdrawal grounds of Rule 1.16(b).² The two rules overlap in content, because two of Rule 6.2's illustrations of good cause have close counterparts among the withdrawal grounds, and exam fact patterns exploit that overlap by describing a lawyer who wants out for a reason that appears in both places. Timing sorts them. Before the lawyer has begun, Rule 6.2 asks whether good cause exists to decline; after the lawyer has begun, Rule 1.16 asks whether the lawyer may leave.

The financial-burden grounds are the closest match. The language of Rule 6.2(b) is directly parallel to Rule 1.16(b)(6), which allows a lawyer to withdraw if "the representation will result in an unreasonable financial burden on the lawyer."³ Parallel wording brings a parallel narrow reading: in both settings the exception is reserved for severe economic dislocation to the lawyer's practice, caused by exceptional demands in lawyer time or expense.⁴ In Cunningham v. Sommerville, the West Virginia Supreme Court agreed that a lawyer employed full time as in-house counsel for a corporation, who likely would lose her job if required to devote substantial time to indigent clients, had shown good cause to resist the appointments.⁵ A lawyer's financial survival can justify refusing a representation or ending one, but an ordinary shortfall in pay justifies neither. A lawyer who complains midcase that the work pays less than expected gains nothing by calling the request a withdrawal.

Repugnance also appears in both rules, but the two rules look at different things. Rule 6.2(c) lets a lawyer decline an appointment if "the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client."⁶ Rule 1.16(b)(4) permits withdrawal if "the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement."⁷ The first focuses on the nature of the client or the cause at the outset of the representation. The second addresses disputes between lawyer and client that arise after retention, over the proper course of action while the representation is underway.⁸ A lawyer who says something is repugnant has therefore raised a question the facts must answer: what did the lawyer find repugnant, and when did the objection arise?

The lawyer in the hypothetical is not asking the Rule 6.2(c) question, which concerns a client or cause so repugnant as to impair the relationship or the lawyer's ability to represent the client. The distinction also tells you which standard applies. The reading of "repugnant" as a high degree of aversion, beyond mere disagreement on a matter of no great principle or general distaste for the person, is given for Rule 6.2(c).⁹ It measures an objection to the client or the cause at the start.

Withdrawal differs from declining in one further respect: a tribunal can order the lawyer to stay, and the order prevails over good cause. The court in Haines v. Liggett Group explained that, under Rule 1.16, withdrawal is entirely within the discretion of the court, and the court may refuse to allow withdrawal despite a showing of good cause.¹⁰ The rule says so in terms: "[A] lawyer shall continue representation notwithstanding good cause for terminating the representation" when so ordered by the court.¹¹ Hardship therefore opens the door to a motion without guaranteeing release.

The court gave a reason for this. Even if withdrawal is otherwise appropriate, other considerations must sometimes take precedence, such as fairness to the litigants and the preservation of the court's resources and efficiency.¹² Those interests belong to the litigants and the court, not to the lawyer, so a lawyer's real hardship does not settle the question. Haines concerns withdrawal under Rule 1.16, so it illustrates the continuation power without altering the good-cause illustrations of Rule 6.2.

Exam Analysis Steps

Because the same facts can sound like either rule, an exam problem about a lawyer who wants out is best sorted by asking when the lawyer's involvement began. The steps are these:

Ask whether the lawyer has already undertaken the representation, since that single fact decides which rule supplies the question.
If the lawyer has not, and a tribunal made the appointment, apply Rule 6.2 and test the lawyer's reason against its illustrations of good cause: a violation of the Rules or other law, an unreasonable financial burden, or repugnance of the client or cause.
If the lawyer has begun, apply Rule 1.16, matching the reason to its withdrawal grounds: unreasonable financial burden under (b)(6), or a client's insistence on repugnant action under (b)(4).
If a tribunal has ordered the lawyer to continue, treat that order as controlling under Rule 1.16(c), even when the lawyer has shown good cause for withdrawing.

The fourth step does the most work on an exam. A lawyer who has shown real hardship is still bound if the tribunal orders continuation, and an answer that stops at the hardship has missed the court's power.

Appointment Versus Withdrawal

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