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 representation will result in violation of the rules of professional conduct or other law;

(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or

(3) the lawyer is discharged.

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer’s services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.

(c) A lawyer must comply with applicable law and rules requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. This subsection (c) does not apply to the automatic withdrawal of a lawyer upon completion of a limited representation made pursuant to Rule 1.2.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, including giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fees or expenses that has not been earned or incurred, and complying with Rule 1.15(f) concerning the information and data to which the client is entitled.


COMMENT

[1] A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict-of-interest and to completion. Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. See Rules 1.2(c) and 6.5; see also Rule 1.3, Comment [4].

Mandatory Withdrawal

[2] A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation.

[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 6.2. Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation. Difficulty may be encountered if withdrawal is based on the client’s demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3.

Discharge

[4] A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services. Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances.

[5] Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. These consequences may include a decision by the appointing authority that appointment of successor counsel is unjustified, thus requiring self-representation by the client.

[6] If the client has severely diminished capacity, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client’s interests. The lawyer should make special effort to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 1.14.

Optional Withdrawal

[7] A lawyer may withdraw from representation in some circumstances. The lawyer has the option to withdraw if it can be accomplished without material adverse effect on the client’s interests. Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer’s services were misused in the past even if that would materially prejudice the client. The lawyer may also withdraw where the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.

[8] A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation.

[8A] An attorney’s limited appearance on behalf of an otherwise self-represented client made pursuant to Rule 1.2 is self-executing. Withdrawal is automatic upon completion of a limited representation. Consequently, the limited appearance itself constitutes notice of termination of representation and does not require the consent of a tribunal.

Assisting the Client upon Withdrawal

[9] Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law. See Rule 1.15.


REPORTER’S NOTES:

Model Rule 1.16 (2002) corresponds to M. Bar R. 3.5. Both rules address the professional responsibilities of a lawyer upon declining, terminating or withdrawing from a client representation. Because there are few substantive differences between the two rules, and there was agreement that the Model Rule was more clearly organized, the Task Force recommended the adoption of the structure and language set forth in Model Rule 1.16 (2002). Lawyers are advised, however, to consult the specific provisions found in Maine procedural rules which address termination of and withdrawal from representation.

Pursuant to Model Rule 1.16, a lawyer may not accept representation in a matter, and must withdraw from a matter if representation has commenced, if the representation cannot be performed competently and in accordance with the rules of professional responsibility. Impliedly, a lawyer may not accept an engagement or must withdraw if a conflict-of-interest exists or later arises. A lawyer must also withdraw upon discharge by the client. Model Rule 1.16 (a) is substantively in accord with M. Bar R. 3.5(b).

Model Rule 1.16(b) (2002) sets forth the circumstances under which a lawyer may withdraw from a representation (permissive withdrawal). It lists seven specific reasons for a lawyer withdrawing, with the last reason being, if “other good cause for withdrawal exists.” These specific reasons are substantively consistent with the specific circumstances for withdrawal set forth in M. Bar R. 3.5(c)(1) – (11). Both M. Bar R. 3.5 and Model Rule 1.16 are substantially in accord with The RESTATEMENT (THIRD), 32. The RESTATEMENT, however, adds a further level of analysis to the matter of permissive withdrawal. It provides that in certain instances of permissive withdrawal, a lawyer may not withdraw if the“harm that withdrawal would cause significantly exceeds the harm to the lawyer or others in not withdrawing.”

The balancing test implied in the RESTATEMENT highlights the tension between permissive withdrawal under Rule 1.16(b) and the authority of the court to deny permission to withdraw, presumably in the “interest of justice.” The limited representation (“unbundling”) process adhered to in Maine requires the acknowledgment that permission of the court is not required when, by its nature, the termination of limited representation is self-executing. See Rule 1.16(c).

M. Bar R. 3.4(g)(ii) states that “a lawyer may commence representation in contemplated or pending litigation if another lawyer in the lawyer’s firm is likely or ought to be called as a witness,” unless such representation is precluded by the conflict-of-interest rules. The Model Rule equivalent to this rule is not included in Rule 1.16, but is found in Model Rule 3.7(b) (2002).