ILNews

Bell/Gaerte: 3 things to know about withdrawing from a case

Back to TopCommentsE-mailPrintBookmark and Share

Bell Gaerte 3 thingsUnfortunately, there comes a time in some attorney-client relationships when breakup is inevitable. You may have tried to “work things out” with your client, but things only got worse. So what do you do?

You could try telling your client that “it’s not you, it’s me,” even if deep down you know that “it’s not you, it’s your client.” The reality is that you have lost whatever spark there was at the beginning of the case, and you and your client don’t see the case the same way anymore. Worst of all, you don’t share the same goals. You feel your passion for the case slipping away. Oh – there is one other thing. There is that little problem with money: You haven’t received any.

At the risk of sounding like Dr. Phil, it sounds like you need to “move on” and “let go.” But before you do, grab Rule 1.16 of the Indiana Rules of Professional Conduct and make certain you are withdrawing from the case ethically.

Here are three things to know about withdrawing from a case:

1. There are times when you must terminate the attorney-client relationship

Whether you want to or not, and regardless of what Dr. Phil advises, there are situations when you must break up with your client. These situations are outlined in Rule 1.16(a) of the Indiana Rules of Professional Conduct. These include times when the “representation will result in a violation of the Rules of Professional Conduct or other law,” “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client” or “the lawyer is discharged.” For example, if your representation of the client will result in your assisting a client in fraud, then under Rule 1.16(a)(1), you must withdraw from the case.

2. When withdrawing, do not make the client’s situation worse

Rule 1.16(b)(1) states that a lawyer may withdraw from representing a client if “withdrawal can be accomplished without material adverse effect on the interest of the client.” What does that mean? That means you likely will not be able to withdraw from a case that is set for trial in a week. Furthermore, it also means that under Rule 1.6, you shall not reveal confidential information relating to the case.

If the reason for withdrawing is that your client has not paid you, state in your motion to withdraw that the “client has not fulfilled his obligations to the undersigned.” Do not say, “The client lied to me about his willingness to pay my fees and I am upside down to the tune of $30,000.” If the reason for withdrawing is that, pursuant to Rule 1.16(b)(4), the “client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement,” place in your motion something like “there has been a breakdown in the attorney-client relationship.” It likely would have a materially adverse effect on the client to state something along the lines of, “My client insists that I present a conspiracy theory to the court, accuse the judge of criminal activity and otherwise impugn the impartiality of the tribunal.”

3. In formal litigation, the court has the final say on the breakup

Rule 1.16(c) states that “a lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation.” That means that the attorney must check the court’s local rules prior to filing the motion to withdraw. Some rules require advance written notice to clients and that notice can include advice regarding the securing of new counsel, as well as notice of upcoming court dates.

Finally, Rule 1.16(c) states that “[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” In other words, the breakup is not always the lawyer’s call. In many cases, a judge must approve a lawyer’s termination of representation. Oftentimes, the longer a lawyer is in a case, the less likely it is that a judge will allow the lawyer to withdraw. When the attorney-client relationship begins, look for signs that “things weren’t meant to be.” If the case goes on too long, not only will breaking up be hard to do, but it maybe impossible.•

__________

James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

ADVERTISEMENT