When It’s Time to Withdraw

When It’s Time to Withdraw

Sometimes things change as matters progress, like the legal needs of the client, your ability to continue to provide competent representation, the effectiveness of the attorney-client relationship, or even the ability of your client to pay your fees. And such changes, for some, lead to a recognition that the time to withdraw has arrived. This is when I’ll get a call, if for no other reason than a lawyer is looking for reassurance that either her decision is sound or that she correctly understands the steps that need to be taken.

I can share I have yet to take a call where I felt the decision to get out wasn’t ethically sound. A good cause for withdrawal did exist. In fact, more than a few turned out to be situations where the lawyer stayed in longer than she perhaps should have or it was a matter he never should have been involved in from the get go. So, given this, I’m going to identify a few things to think about when withdrawing, because a poorly managed withdrawal can easily bring about unintended consequences.

In most jurisdictions, withdrawing from a matter is permissible only if it can be accomplished without bringing about a material adverse effect on the interests of the client. This means you shouldn’t try things like attempting to force your client to pay a past due bill on the eve of trial under threat of a withdrawal. That would be a bad idea, especially if you actually followed through on your threat. Clients are to be given reasonable notice that allows them enough time find another lawyer.

In a similar vein, don’t hold a client file hostage post departure. If the client is legally harmed as a result, you’ve got a problem. Lawyers have an ethical obligation to surrender papers and property to which clients are entitled.

If permission from tribunal is necessary, don’t tell the judge the reason you want out is your client is a lying, good-for-nothing deadbeat, or something along those lines. The confidentiality rule is still in play. Again, the legal interests of your client can’t be adversely impacted by your departure.

I need to take this line of thinking even further, however, and come at the topic from a risk management perspective because clients can also be harmed if they are not properly informed at the time of a withdrawal. Best practices dictate that clients be made fully aware of the status of their legal matter at the time a lawyer withdraws. This includes being told of any legal ramifications if the client were to simply let the matter languish. Obviously what needs to be shared will differ depending upon the type of matter and how far it has progressed. Just don’t forget about documenting this discussion. If you have no record of what you told the client, it’s going to be difficult to convince anyone the discussion even occurred if you are ever questioned about it. Heaven forbid a SOL date runs several months after your exit and you have no record that the client was made aware of the legal consequences of missing that deadline. Get it? Good.

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Since 1998, Mark Bassingthwaighte, Esq. has been a Risk Manager with ALPS, an attorney’s professional liability insurance carrier. In his tenure with the company, Mr. Bassingthwaighte has conducted over 1200 law firm risk management assessment visits, presented over 400 continuing legal education seminars throughout the United States, and written extensively on risk management, ethics, and technology. Mr. Bassingthwaighte is a member of the State Bar of Montana as well as the American Bar Association where he currently sits on the ABA Center for Professional Responsibility’s Conference Planning Committee. He received his J.D. from Drake University Law School.