Declining or Terminating Representation Under Rule 1.16
1. Introduction
This blog post attempts to clarify, qualify, update and, in some cases, correct positions taken on Rule 1.16, “Declining or Terminating Representation,” by three normally reliable sources – the Office of Lawyers Professional Responsibility (OLPR), the Lawyers Professional Responsibility Board (LPRB), and the leading commentary on the Model Rules, Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering (Hazard, Hodes & Jarvis). Although these sources offer generally good guidance on ethics issues, including terminating attorney-client representations, they – uncharacteristically –have taken positions that are not clearly supported by Rule 1.16 or require clarification, or qualification. Three corrections already have been made, as noted below, by the Minnesota Supreme Court.
2. Lawyers Board Opinion 13 Regarding Withholding of Client Documents – No Support for the "Substantially Prejudiced" Standard
A. Board Authority to Issue Opinions. LPRB’s charter to issue ethics opinions was given by the Supreme Court, “The Board . . . may, from time to time, issue opinions on questions of professional conduct.” Rule 4(c), R. Law. Prof ’l Resp.
B. Court’s Severe Limitation on Board’s Authority. The court has, however, limited LPRB’s opinion charter by case law. In re Panel File 99-42, 621 N.W.2d 240, 241 (Minn. 2001) held that a lawyer may not be disciplined solely for violating a Board opinion. Most importantly, 99-42 imposed strict limitations on future LPRB opinions, “Board opinions that interpret pre-existing rules without either effectively creating new rules of professional conduct or exceeding the scope or plain meaning of the rules are entitled to careful consideration.” Id. at 245.
C. LPRB and OLPR Recognize Board Opinions are “Seriously Impaired” and Many are Repealed. After 99-42, the Board and OLPR acknowledged they (like many others) previously had been, “under the mistaken impression that an implicit delegation of authority had occurred, allowing the board to issue and enforce opinions that expanded and clarified existing prohibitions.” Edward J. Cleary, Ethics and the Board: The Court Draws the Line, BENCH & B. OF MINN., May/June 2001, at 20, 20. As an article by a LPRB member stated, 99-42 caused the Board to recognize that enforcement of its opinions, including Opinion 13, “has been seriously impaired.” Charles B. Bateman, Opinions of the Lawyers Board, BENCH & B. OF MINN., Nov. 2002, at 12, 12. In the years after 99-42, the Board repealed several opinions, because they were not well-anchored in the Rules. Opinion 13 has not, however, been repealed, despite its “seriously impaired” status and its lack of an anchor in the Rules.
D. Rule 1.16(d) – “Papers and Property to Which the Client is Entitled.” When terminating representation, a lawyer must “take steps to the extent reasonably practical to protect a client’s interests.” Rule 1.16(d). Among these steps are surrendering, “papers and property to which the client is entitled.” Id. To which such items is the client entitled? This question was addressed in detail by LPRB Opinion 13, issued in 1989. However, 99-42 made clear that Opinion 13, in its nature, could not answer the question by adding to the rules or by interpreting unclear rule language, because LPRB opinions cannot exceed “the scope or plain meaning of the rules.”
E. Rule 1.16(e)-(g) Define Entitlement. Recognizing the limits of LPRB opinions, LPRB, OLPR and MSBA all asked the Court to amend the Rules, to codify some portions of LPRB opinions. The Court responded by adopting new Rules, as requested, including Rule 1.16(e)-(g), in 2005. These paragraphs identified, in great detail, “Papers and property to which the client is entitled include the following....”
F. Almost Comprehensive Codification. Explaining the 2005 Rule 1.16 amendments, an article by the OLPR Director stated, categorically, “Opinion No. 13’s definitions of client files, papers and property are now contained in Rule 1.16(e).” Kenneth L. Jorgensen & William J. Wernz, New Directions in Professional Conduct: The Devil is in the Details, BENCH & B. OF MINN., Sept. 2005. However, the amended Rule did not codify one important element of Opinion 13 – that lawyers must give former clients documents where “the client’s interests will be substantially prejudiced without the documents.” To clarify, it should be stated that Rule 1.16(e) codified all portions of Opinion 13 that LPRB and OLPR asked the Court to adopt. However, the Court was not asked to adopt, and did not adopt, Opinion 13’s “substantially prejudiced” catchall category. If LPRB had wished to have that category codified, it should have asked the Court.
G. LPRB Fails to Repeal Opinion 13. Following 99-42 and the 2005 Rule amendments, LPRB repealed several opinions. However, LPRB did not repeal Opinion 13, even though it should have been repealed for at least three reasons – (1) it was superseded by Rule 1.16(e)-(g); (2) it lacked support in the Rules; and, (3) having been adopted as an interpretation of the 1989 version of Rule 1.16, it could hardly be regarded as an interpretation of the materially amended 2005 version of Rule 1.16.
H. Opinion 13’s “Substantially Prejudiced” Standard Has no Support in the Law. LPRB’s retention of Opinion 13 attempts to carry forward a standard that plainly goes above and beyond the requirements of Rule 1.16(e)-(g). Nowhere in this Rule is it provided that lawyers must transfer documents because substantial prejudice will result from retention. This provision exceeds “the scope or plain meaning of the rules,” and thereby exceeds LPRB’s authority, as defined by 99-42. LPRB’s failure to repeal Opinion 13 and its attempt to add a “substantially prejudiced” criterion to Rule 1.16 are unjustifiable in the law.
I. “Protect a Client’s Interests” Does not Support Opinion 13. The general mandate to “protect a client’s interests” cannot be construed as a warrant for LPRB to add whatever categories it finds desirable to “papers and property to which the client is entitled.” Rule 1.16(d), (e). Rule 1.16 itself specifies how a client’s interests are to be protected, viz. by transferring documents to which the client is entitled.
J. OLPR Should Expressly Decline to Enforce Opinion 13. Regarding Board opinions, OLPR has recognized the difference between an obligation and a best practice, “Even those opinions that do not correlate to a rule provision, remain, at the very least, the best practice.” Edward J. Cleary, Ethics and the Board: The Court Draws the Line, BENCH & B. OF MINN., May/June 2001, 20, 22. OLPR has also recognized the primacy of Rule 1.16 over Opinion 13, “Although Opinion 13 has never been repealed, attorneys seeking to determine exactly what must be produced should first look to the language of the current Rule 1.16(e).” Robin J. Crabb, The Perils of Holding Client Files Hostage, Minn. Law., Jan. 3, 2011. This isolated, oblique reference is inadequate for OLPR’s statement of position. If the Board will not repeal the portion of Opinion 13 that purports to add a “substantially prejudiced” test to Rule 1.16, OLPR should plainly state that it will not enforce that test.
3. Notice of Termination – A "Fundamental Step?"
A. OLPR. An OLPR article asserts, of Rule 1.16(d), that “[t]he rule requires a lawyer to take reasonable steps upon termination of representation to protect the client’s interests. A fundamental step is to advise the client that representation had ended.” Timothy M. Burke, Avoiding Problems When Terminating Representation, Minn. Law., Feb. 4, 2008, at 8, 8 (emphasis added). The article does not cite any authority for its claim of a “fundamental” requirement.
B. Exceptions to “Fundamental Step.” The article does not cite the comments stating that termination may occur by completion of the lawyer’s work, or by resolution of the controversy. Rule 1.16 cmt. 1, Rule 1.3 cmt. 4. After such events, the client will often have no interests to protect. Moreover, many representations end when the client stops asking the lawyer for services, e.g., a client calls a lawyer periodically for several years to ask advice of a certain sort, then stops calling. Many other representations are clearly terminated by completion, e.g., all the documents for a transaction or an estate plan have been executed. In the author’s opinion, notice of termination of a representation is required in some circumstances, and is often a “best practice,” but notice is not “fundamental” or categorically required.
4. Must Withdraw?
A. OLPR—Must Withdraw. An OLPR article states, categorically, “Ultimately, under MRPC 1.16 and comment 15 to Rule 3.3, if the client refuses to cooperate or voluntarily disclose the falsehood, the lawyer must withdraw from representation and make the necessary disclosure.” Craig D. Klausing, Correcting the Record Under Rule 3.3, Minn. Law., Dec. 13, 2010, at 11.
B. Comment 15. OLPR has stated that it uses the Comments to the Rules for interpretation and enforcement. Timothy M. Burke, Comparing Services Can be Dicey, Minn. Law., July 2006, at 5. The Klausing article cites comment 15 to Rule 3.3, but omits the comment’s material provisions. Comment 15 states, “Normally, a lawyer’s compliance with the duty of candor imposed by this rule does not require that the lawyer withdraw from the representation of a client whose interests will be or have been adversely affected by the lawyer’s disclosure.” (emphasis added.) The article’s categorical “must withdraw” does not square with Comment 15’s “normally . . .not require that the lawyer withdraw.” For more guidance, Comment 15 states, “The lawyer may, however, be required by Rule 1.16(a) to . . . withdraw if the lawyer’s compliance with this rule’s duty of candor results in such an extreme deterioration of the client-lawyer relationship that the lawyer can no longer competently represent the client.” In short, the categorical position stated in the Klausing article does not harmonize with the nuanced position taken in Comment 15.
5. Hot Potato Update
A. Hot Potato Rule. A 2005 amendment to Rule 1.16 requires reconsideration of the hot potato rule, in limited circumstances. Pursuant to the amendment, a lawyer (L) may terminate a representation, of a client (C) for “no reason,” where C will not suffer “material adverse effect.” Rule 1.16(b)(1). May L terminate representation of C for the purpose of undertaking a representation directly adverse to C (assuming the termination itself has no material adverse effect)? The “hot potato” rule, applied by many courts, forbade firing C for the purpose of becoming adverse to C. “A firm may not drop a client like a hot potato, especially if it is in order to keep happy a far more lucrative client.” Picker Int’l, Inc. v. Varian Assocs., Inc., 670 F. Supp. 1363, 1365 (N.D. Ohio 1987).
B. OLPR Adoption. OLPR adopted the hot potato rule, issuing an admonition to L, where L terminated representation of C to take on a representation adverse to C. Marcia A. Johnson, Summary of Admonitions 1994, BENCH & B. OF MINN., Mar. 1995, at 15. OLPR explained that L violated Rule 1.16 by withdrawing “without just cause.” Id. at 15. OLPR’s position was stated again in Martin A. Cole, At Odds With Your Client, BENCH & B. OF MINN., Sept. 1997, at 16, and in Martin A. Cole, When Does a Current Client Become a Former Client?, Minn. Law., Mar. 1, 2004, at 2. However, OLPR’s reasoning and most of the relevant judicial decisions antedated adoption of Rule 1.16(b)(1), in 2005.
C. Hot Potato Update. The 2005 Rules amendments require reconsideration of the hot potato rule, in at least one circumstance. Rule 1.16(b)(1) allows withdrawal, regardless of good cause, if withdrawal will not cause the client “material adverse effect.” Rule 1.16(b)(1) allows withdrawal regardless of motive. If the withdrawal itself can be accomplished without material adverse effect, the fact that the withdrawing lawyer will represent another client, on an unrelated matter, against the now-former client, does not appear to violate Rule 1.16. Hazard, Hodes & Jarvis would not apply a hot potato disqualification in these circumstances. 1 Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering § 20.10, at 20-26 (3d ed. Supp. 2005-2). OLPR has not stated whether its pre-2005 adoption of the hot potato rule has been qualified by the 2005 amendment to Rule 1.16(b).
6. Questioning Veracity – Good Cause for Withdrawal?
A. OLPR Article According to an OLPR article, a lawyer has good cause for withdrawal, under Rule 1.16(b), where the lawyer “merely questions the veracity of the evidence.” Craig D. Klausing, Dealing With Clients Who Lie: What Can You Ethically Do?, Minn. Law., Oct. 9, 1998, at 2, 2.
B. Omitted Authorities. The article does not explain how this position harmonizes with the principle, “Thus although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor the client, the lawyer cannot ignore an obvious falsehood.” Rule 3.3 cmt. 8. Nor does the article explain why “merely questions” should be added to all the states of mind - including “knows” and “reasonably believes” and “reasonably should know” – that are already defined and used in the Rules. Rule 1.0.
C. Applications. On the article’s theory, criminal defense lawyers who offer evidence would often have grounds for withdrawal. Is merely questioning a criminal defendant’s veracity a “good cause” for defense counsel to seek court permission to withdraw? What about an immigration lawyer, whose client faces deportation and worse? In the author’s opinion, serious questions about a client’s veracity constitute good cause for withdrawal in some circumstances, but not in others, and “merely” questioning veracity is not ordinarily good cause for withdrawal.
7. Right to Discharge – Qualifications to Correct Statement
A. Discharge by Client. A lawyer “shall withdraw” from a representation where “the lawyer is discharged.” Rule 1.16(a)(3). An OLPR article states, “Clients are always free to discharge an attorney and replace the attorney with someone else.” Martin A. Cole, Update on Law Firm Departures, BENCH & B. OF MINN., May/June 2010, at 14, 14. Similarly, the common law holds that a client has an unconditional right to be represented by counsel of his choosing. Lawler v. Dunn, 145 Minn. 281, 176 N.W. 989 (1920). These principles are correctly stated, but some clarification is helpful.
B. Three Qualifications to Client’s Right to Discharge Counsel. To clarify, the rights of clients to discharge counsel are subject to three potential qualifications:
1. Appointed Counsel. First, a comment cautions, “Whether a client can discharge appointed counsel may depend on applicable law.” Rule 1.16 cmt. 5.
2. Client Capacity. Second, another comment cautions, “[T]he client may lack the legal capacity to discharge the lawyer.” Rule 1.16 cmt. 6.
3. In-House. Third, although an organization that employs lawyers shares the general client right to discharge lawyers, the lawyers may have employment rights that allow the lawyers monetary remedies for wrongful discharge. Nordling v. N. States Power Co., 478 N.W.2d 498 (Minn. 1991). The nature of the employed lawyer’s duties to the organizational employer may affect the lawyer’s employment rights. Kidwell v. Sybaritic, Inc., 784 N.W.2d 220 (Minn. 2010).
8. Prior Supreme Court Cases
A. Overview. There are three Minnesota Supreme Court cases, between 1995 and 2003, in which the court rejected OLPR interpretations of Rule 1.16 or other rules affecting termination of representation. They are briefly summarized here, in chronological order.
B. The Procedural Rules are Not Interpreted by a Purported “Spirit.” OLPR argued that a disbarred lawyer should not be reinstated because he had not complied with the “spirit” of a rule that required him to notify any existing clients of his disbarment. On advice of counsel (the author), the lawyer terminated his representations of all clients shortly before he was disbarred. When the disbarment order was issued, he had no clients to notify. The court’s referee and the court rejected OLPR’s argument that the lawyer did not comply with the “spirit” of the rule. In re Lieber, 834 N.W.2d 200, 204, 207 (Minn. 2013).
C. Failure to Provide Document, Opinion 13. A client did not pay for a transcript, but demanded it of his lawyer. The lawyer initially declined, then provided the transcript after the client filed an ethics complaint. OLPR issued an admonition to the lawyer, based on an alleged violation of LPRB Op. 13. A LPRB hearing panel affirmed, but the Minnesota Supreme Court reversed. In re Panel File 99-42, 621 N.W.2d 240 (Minn. 2001)
D. “A Bunch of Crap” – Good Cause for Withdrawal? A difficult relationship between client (C) and lawyer (L) reached meltdown when C wrote to L, “I think this whole thing has turned into a bunch of CRAP!” In re 94‑24, 533 N.W.2d 852, 853 (Minn. 1995). L terminated the relationship and C filed an ethics complaint. OLPR issued an admonition, affirmed by a LPRB panel. The court reversed as to OLPR’s claim that L did not have “good cause” to withdraw. However, the admonition was sustained as to L’s failure to return file documents.
9. Leading Commentary – Two Mistakes
A. Leading Commentary. The leading commentary on the Model Rules is Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering. The commentary is of high quality and is generally reliable. However, on TWO Rule 1.16 subjects, the commentary is inaccurate.
B. Court Permission to Withdraw. Rule 1.16(c) invokes “applicable law,” usually court rules, regarding whether “permission of a tribunal” is required, “when terminating a representation.” Hazard, Hodes & Jarvis mistakenly states, categorically, “Rule 1.16(c) . . . requires . . . that a lawyer involved in litigation must move or petition to withdraw in order to give the tribunal an opportunity to order the representation to continue.” 1 Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering § 20.11, at 20-28 (3d ed. Supp. 2005-2). Much more helpful are two Minnesota commentaries that cite and explicate court withdrawal rules, only some of which require court permission. Edward J. Cleary, Withdrawing as Counsel, BENCH & B. OF MINN., Nov. 1999, at 22; Kenneth L. Jorgensen, Ethical and Procedural Withdrawal Requirements, Minn. Law., Nov. 4, 2002, at 2. For example, in civil matters before Minnesota district courts, lawyers may withdraw without leave of the court.
C. Finding Substitute Counsel. When withdrawing from representation, a lawyer shall allow “time for employment of other counsel.” Rule 1.16(d). Hazard, Hodes & Jarvis would add another obligation, “It would still be incumbent upon L to assist C in finding substitute counsel.” 1 Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering § 20.11 illus. 20-7 (3d ed. Supp. 2005-2). There is no support in the Rule or comment for the obligation the commentary would impose on lawyers. In some circumstances – for example, withdrawal due to client fraud – the obligation would be onerous.