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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT