Following is the 34th post in a series from Parker Taylor Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 1 – “Lawyer-Client Relationship,” focusing on the requirements involved with a lawyer’s representation of a client. The Rule of Professional Conduct, as revised, is as follows:
Rule 1.16 Declining or Terminating Representation
(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 lawyer knows or reasonably should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person;
(2) the lawyer knows or reasonably should know that the representation will result in violation of these rules or of the State Bar Act;
(3) the lawyer’s mental or physical condition renders it unreasonably difficult to carry out the representation effectively; or
(4) the client discharges the lawyer.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) the client insists upon presenting a claim or defense in litigation, or asserting a position or making a demand in a non-litigation matter, that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;
(2) the client either seeks to pursue a criminal or fraudulent course of conduct or has used the lawyer’s services to advance a course of conduct that the lawyer reasonably believes was a crime or fraud;
(3) the client insists that the lawyer pursue a course of conduct that is criminal or fraudulent;
(4) the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;
(5) the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation;
(6) the client knowingly and freely assents to termination of the representation;
(7) the inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal;
(8) the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively;
(9) a continuation of the representation is likely to result in a violation of these rules or the State Bar Act; or
(10) the lawyer believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.
(c) If permission for termination of a representation is required by the rules of a tribunal, a lawyer shall not terminate a representation before that tribunal without its permission.
(d) A lawyer shall not terminate a representation until the lawyer has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, such as giving the client sufficient notice to permit the client to retain other counsel, and complying with paragraph (e).
(e) Upon the termination of a representation for any reason:
(1) subject to any applicable protective order, non-disclosure agreement, statute or regulation, the lawyer promptly shall release to the client, at the request of the client, all client materials and property. “Client materials and property” includes correspondence, pleadings, deposition transcripts, experts’ reports and other writings, exhibits, and physical evidence, whether in tangible, electronic or other form, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not; and
(2) the lawyer promptly shall refund any part of a fee or expense paid in advance that the lawyer has not earned or incurred. This provision is not applicable to a true retainer fee paid solely for the purpose of ensuring the availability of the lawyer for the matter.
Application:
For the most part, Rule 1.16 of the CBA’s new version of the RPC – as set forth above – is the same as the corresponding rule in the previous RPC (Rule 3-700), except for a change in the order of some of the subdivisions. For instance, the first two subdivisions in the previous rule – (A)(1)-(2) – now appear in subdivisions (c) and (d) of Rule 1.16. And what used to be listed under subdivision (B), under the heading of “Mandatory Withdrawal,” is now the first subdivision – (a)(1)-(4). (Actually, subdivision (4) – allowing a lawyer to withdraw from representation if the client discharges the lawyer – is new.)
Subdivision (b)(2)-(4) of the current rule matches the text found in (C)(1)(b)-(d) of the previous rule, which had the heading of “Permissive Withdrawal.” And the last part of each version of this rule (3-700(D) in the old, (e)(1)-(2) in the new) are nearly identical. Only one subdivision was substantially changed. Subdivision (C)(1)(f) in the previous RPC – “breaches an agreement or obligation to the member as to expenses or fees” has been expanded in (b)(5) of the new rule to say that a lawyer is allowed to withdraw from representing a client if the lawyer has given the client a reasonable warning, after the breach, that he or she will withdraw unless the client fulfills the agreement or performs the obligation.
Rule 1.16 in the American Bar Association (ABA)’s RPC is very similar to the CBA’s version of this rule in the new RPC. ABA Rule 1.16(a)(1)-(3) covers provisions for mandatory withdrawal of a lawyer’s representation of a client; (b)(1)-(7) covers provisions for permissive withdrawal of representation; (c) is the same in both ABA’s and CBA’s RPC; and (d) corresponds to (e) in CBA’s rule.
Benefit: Generally speaking, because the new rule has elaborated on some of the provisions mentioned in the previous version of the rule, any client who wishes to better understand their rights for representation will now find it easier to do so.
The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Taylor Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 22 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at (916)996-0400 or at contact@parlawgroup.com. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)
Rules of Professional Conduct, California Bar Association, American Bar Association, Legal Malpractice, Legal Representation, Parker Taylor Law Group, Port Parker