Rule 1.16—Terminating Representation
I. OVERVIEW
A. Questions Addressed
Rule 1.16 answers important questions regarding termination of representation in a matter.
1. In what circumstances must a lawyer withdraw from a representation?
2. In what circumstances may a lawyer withdraw from a representation?
3. In what circumstances must a lawyer obtain permission of a tribunal for withdrawal?
4. Having decided to withdraw, when and how must a lawyer proceed to protect the client?
5. Upon termination, to what papers and property is the client entitled? When may a lawyer charge for file copies? May a lawyer condition return of client papers and property on payment of fees or costs?
B. Frequent and Practical Issues
Rule 1.16 addresses issues that arise frequently, both for practicing lawyers and as a basis for ethics complaints. "Disputes and complaints about returning client files, what must be included in such files, and whether lawyers can charge for retrieving and copying the file are a steady source of business for lawyer disciplinary agencies, and one of the top areas of inquiry for advisory opinions." Martin A. Cole, Update on Law Firm Departures, BENCH & B. OF MINN., May/June 2010, 14, 14. Almost every annual summary of admonitions for many years includes one or more Rule 1.16 violations. Notice and file issues are magnified, both quantitatively and in temperature, when lawyers leave their law firms, taking numerous files along. Perhaps the most frequent issue is what rights a client has to the file in the lawyer's possession.
A two-part article by a lawyer who frequently represents lawyers in ethics matters offers practical guides in deciding when and how to go about terminating a client representation. Eric Cooperstein, Figuring Out How and When to Withdraw from Representing a Client, HENN. LAW., March 18, 2022 and How to Draft a Withdrawal Letter, HENN. LAW., March 25, 2022.
C. "Declining or Terminating"
Although Rule 1.16 is titled, "Declining or Terminating Representation," declining a representation is by far the minor subject of Rule 1.16. "Declining" appears only in a portion of Rule 1.16(a) and not in Rule 1.16 (b)-(g). Most of the Rule deals with terminating (withdrawing) and with duties upon termination or completion of a representation.
D. File Issues Before and After 2005
Clients' rights to files have been the centerpiece of several Lawyers Board opinions, most of the commentary on Rule 1.16 by the Office of Lawyers Professional Responsibility (OLPR), and many private disciplines. Governing rules and relevant Board opinions have changed frequently. Opinions, commentaries, and cases that antedate the 2005 Rule amendments should be used only with great care, to determine whether the standards then in effect remain effective after 2005.
E. Minnesota Additions to Model Rule
Model Rule 1.16 contains paragraphs (a) through (d). Minnesota adopted Model Rule 1.16, but added paragraphs (e), (f), and (g). These Minnesota additions were adopted largely to specify the Model Rule provision that on termination of representation a lawyer must surrender "papers and property to which the client is entitled." ABA Model R. Prof'l Conduct 1.16(d). Without provisions like Minnesota Rule 1.16(e), (f), and (g), such entitlement would have to be determined by reference to general property law and common law.
F. Comments
The comments to Rule 1.16 are not comprehensive or well-organized. There are no comments relating to Rule 1.16(d)-(g), in part because there is no Model Rule counterpart to Minnesota Rule 1.16(e)-(g). Comments usually follows the sequence of subjects in the corresponding Rule, but not for Rule 1.16. Rule 1.16(a) is the subject of Comments 1, 2, 4, 5, and 6. Rule 1.6(b) is the subject of Comments 7 and 8. Rule 1.16(c) is the main subject of Comment 3. Many of the Rule 1.16 comments involve broad general advice, rather than specific Rule interpretation, e.g., "Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances." Rule 1.16 cmt. 4.
G. Withdrawal and Confidentiality
The provisions of Rule 1.16(c) for withdrawal with permission of a tribunal are in some tension with the confidentiality provisions of Rule 1.6. The relationship of these Rules is discussed below. More generally, a comment states, "Neither this rule nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from giving notice of the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion, document, affirmation, or the like." Rule 1.6 cmt. 14. The permission to withdraw or disaffirm is generally implied in Rule 1.6(b)(4) and (5).
H. Is File Transfer Within a Firm a "Withdrawal"?
Client matters are frequently transferred from one lawyer, with principal responsibility, to another, within a law firm. Does such a transfer constitute a withdrawal, triggering responsibilities under Rule 1.16? Rule 1.16 does not clearly answer the question. Rule 1.16 uses "withdraw" as shorthand for "termination of representation." A representation is not terminated by transfer of primary responsibility within the law firm. Most representations involve contracts between a law firm and a client, not between the individual lawyer and the client. Where court approval is needed for withdrawal, such approval would not be required where responsibility was transferred within a firm. On the whole, it appears that file transfer within a firm is not a "withdrawal," under Rule 1.16.
I. Discipline
Rule 1.16 violations are very frequent subjects of discipline. If there are no other violations, the discipline is usually private. Most public disciplines that include Rule 1.16 violations involve abandonment of clients and their files, failure to refund an unearned retainer, or violations of other Rules, especially Rules 1.3, 1.4, and 1.15, with Rule 1.16 violations (almost always Rule 1.16(d)) being added in. This chapter does not include a survey of most public Rule 1.16 disciplines.
J. Closely Related Rules
Other rules and comments frequently cite Rule 1.16. Rules that are closely related to Rule 1.16 include Rules 1.1, 1.2, 1.3, 1.4, 1.6, 1.13, 1.15(c)(4), 1.17, 3.1, and 3.3.
II. SHALL DELCINE OR WITHDRAW—RULE 1.16(a)
A. Reasons for Mandatory Withdrawal
The three situations in which withdrawal is required are "where representation will result in a violation of the MRPC, if the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client, or if the lawyer is discharged." Martin A. Cole, Withdrawing: May I? Must I?, BENCH & B. OF MINN., Nov. 2014. "Perhaps the most common instances of mandatory withdrawal occur either when a conflict arises that may result in a rule violation (particularly 1.7, MRPC) or when the lawyer is fired." Edward J. Cleary, Withdrawing as Counsel, BENCH & B. OF MINN., Nov. 1999, at 22, 22.
B. Shall Decline or Withdraw—Violation of Rules or Law
1. Violation of the Rules. A representation must be declined or terminated where the representation will result in violation of the Rules "or other law." Rule 1.16(a)(1).
2. "Will Result." The words "will result" imply a high degree of knowledge, but prudence and self-preservation suggest a much lower degree of knowledge or suspicion should be applied as a matter of lawyer discretion, especially in declining a representation. Rule 1.16(a)(1).
3. Materiality Requirement? A comment states, "If the lawyer's services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1)." Rule 1.6 cmt. 14. However, Rule 1.16(a)(1) and Rule 1.2(d) do not include any materiality provision. The comment should not be read to permit a lawyer to further wrongful conduct even a little bit.
4. Attorney-Client Relationship. As discussed below, a deterioration of the attorney-client relationship can be grounds for the attorney's permissive withdrawal. In extreme cases, withdrawal would be mandatory, because a competent representation is no longer likely. Rule 3.3 cmt. 15.
C. Shall Decline or Withdraw—Conflicts
Conflicts of interest that are not, or cannot be, waived are contemplated by Rule 1.16(a)(1). "If a conflict arises after representation has been undertaken, the lawyer ordinarily must withdraw from the representation, unless the lawyer has obtained the informed consent of the client under the conditions of paragraph (b). See Rule 1.16." Rule 1.7 cmt. 4.
D. Which Representation Should Be Terminated?
An ABA formal opinion recognizes the difficulty in identifying the correct withdrawal(s) where conflicts arise, or are discerned, only after a representation is well under way. "Priority in time of the commencement of the representation is ordinarily likely to be given primary weight, yet the balance of equities, in terms of prejudice resulting from withdrawal, may tilt strongly the other way." ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 92 367 (1992). A comment also recognizes that in some circumstances, withdrawal from only one of the relevant representations may be required. "Depending on the circumstances, the lawyer may have the option to withdraw from one of the representations in order to avoid the conflict." Rule 1.7 cmt. 5.
E. Dissolution and Bankruptcy
A lawyer (L) represented a wife (W) in a marriage dissolution. While this representation was ongoing, L represented both W and her husband in a bankruptcy proceeding. The concurrent representations created conflicts of interest. L received an admonition for violating Rule 1.16(a)(1). Edward J. Cleary, Summary of Admonitions, BENCH & B. OF MINN., Mar. 2000, at 18.
F. Public Discipline
A lawyer, Ruhland (R), had an extensive discipline history: two public reprimands and three admonitions. R represented a cabinetry business, Shlangen's (S), on collection matters. R also bought cabinets from S, but did not pay for them. S sued R. At the time of the...
