How Do I Get Out of This Case?

Many attorneys find themselves in the midst of a case and wonder how they got there and how to get out of the morass in which they find themselves. When looking for a way out, turn to the California Rules of Professional Conduct, which has provisions for both permissive and mandatory withdrawal from a case. 

The California Rules of Professional Conduct allow for permissive withdrawal without the client’s written consent when there are no grounds for mandatory withdrawal (or for conditional mandatory withdrawal). Here are the grounds for permissive withdrawal:

  • Unwarranted claim or defense. The client insists on presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for extension, modification, or reversal of existing law. Cal Rules of Prof Cond 3-700(C)(1)(a).
  • Client’s illegal course of conduct. The client seeks to pursue an illegal course of conduct. Cal Rules of Prof Cond 3-700(C)(1)(b).
  • Attorney’s illegal or prohibited conduct. The client insists that the attorney pursue a course of conduct that is illegal or that is prohibited under the California Rules of Professional Conduct or the State Bar Act. Cal Rules of Prof Cond 3-700(C)(1)(c).
  • Unreasonable difficulty in serving as attorney. The client by other conduct makes it unreasonably difficult for the attorney to carry out the employment effectively. Cal Rules of Prof Cond 3-700(C)(1)(d).
  • Client’s failure to follow advice. The client insists, in a matter not pending before a tribunal, that the attorney engage in conduct contrary to the attorney’s judgment and advice but not prohibited under the California Rules of Professional Conduct or the State Bar Act. Cal Rules of Prof Cond 3-700(C)(1)(e).
  • Failure to pay as agreed. The client breaches an agreement or obligation to the attorney on expenses or fees. Cal Rules of Prof Cond 3-700(C)(1)(f).
  • Violation of rules likely. The attorney’s continued employment is likely to result in a violation of the California Rules of Professional Conduct or of the State Bar Act. Cal Rules of Prof Cond 3-700(C)(2).
  • Inability to work with co-counsel. An inability to work with co-counsel indicates that the client’s best interests will likely be served by withdrawal. Cal Rules of Prof Cond 3-700(C)(3).
  • Mentally or physically unable to serve. The attorney’s mental or physical condition makes it difficult for the attorney to carry out the employment effectively. Cal Rules of Prof Cond 3-700(C)(4).
  • Client assents to withdrawal. The client knowingly and freely assents to termination of the employment. Cal Rules of Prof Cond 3-700(C)(5).
  • Other good cause for withdrawal. The attorney believes, in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal. Cal Rules of Prof Cond 3-700(C)(6).

In contrast, an attorney is subject to mandatory withdrawal from employment and from representation before a court or tribunal in any of the following circumstances:

  • Harassing litigation. When the attorney knows or 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. Cal Rules of Prof Cond 3-700(B)(1).
  • Unethical conduct. When the attorney knows or should know that continued employment will result in violation of the California Rules of Professional Conduct or the State Bar Act. Cal Rules of Prof Cond 3-700(B)(2).
  • Health of attorney. When the attorney’s mental or physical condition makes it unreasonably difficult to conduct the case effectively. Cal Rules of Prof Cond 3-700(B)(3).
  • Sexual relations with client. When attorney-client sexual relations cause the attorney to perform legal services incompetently. Cal Rules of Prof Cond 3-120.

If permission for an attorney’s termination of employment is required by rules of a tribunal, the attorney can’t withdraw from employment in a proceeding before that tribunal without its permission. Cal Rules of Prof Cond 3-700(A)(1).

Once withdrawn from a case, the attorney must promptly advise the client—and this should be in writing—and take reasonable steps to avoid “reasonably foreseeable prejudice to the rights of the client.” Cal Rules of Prof Cond 3-700(A)(2).

For more on terminating your relationship with a client, including sample form letters, turn to CEB’s California Client Communications Manual: Sample Letters and Forms, chap 7. Here’s an excellent video introduction to this book by one of its authors, Micha Liberty.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

6 Responses

  1. […] that are prohibited by the California Rules of Professional Conduct or other laws, you must withdraw! See Cal Rules of Prof Cond […]

  2. […] the situation with both clients in writing and, if the situation doesn’t improve, consider withdrawing as counsel in the […]

  3. […] always better to do a thorough evaluation of a case before taking it than having to get out of a badly chosen […]

  4. […] help on all aspects of changes in representation, including substitution of attorney and withdrawal, with sample forms, turn to CEB’s California Civil Procedure Before Trial, chap […]

  5. […] How Do I Get Out of This Case? […]

Add your comment to the blog post

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: