Can a lawyer withdraw when the client ignores advice and keeps escalating a personal feud with the opposing party, damaging the case?

Plain-English summary

A firm represented clients suing the buyer of land they had sold, alleging fraud and breach of contract tied to the buyer's alleged interference with their right to repurchase and an illegal dump created on the property. After the suit was filed, one client began a feud with the defendant: he was convicted of malicious mischief for damaging a gate at the start of his access easement, and later admitted leaving the defendant's gate open so cattle escaped onto a roadway, creating a hazard. The client insisted he owned the easement land and refused a compromise giving him a key to a locked gate, and ignored the lawyer's instruction to call before acting. The firm asked whether it could ethically withdraw because the client refused to cooperate or follow advice.

The Disciplinary Commission concluded the firm may ethically withdraw because of the client's refusal to cooperate or follow advice. The opinion grounded this in Rule 1.16(b)(3), which permits withdrawal where withdrawal can be accomplished without material adverse effect on the client or where the client insists on pursuing an objective the lawyer considers repugnant or imprudent. Given the client's prior misconduct and conviction, his refusal to accept the legal limits on his property rights, and the lawyer's belief that he would continue to disregard advice and possibly contravene other laws, withdrawal was permissible. The opinion quoted the Comment to Rule 1.16 that withdrawal is also justified where the client persists in conduct the lawyer reasonably believes is criminal or fraudulent.

The opinion directed the firm, in withdrawing, to heed Rule 1.16(d): on termination, take steps reasonably practicable to protect the client's interests, including reasonable notice, time to find other counsel, surrender of papers and property to which the client is entitled, and refund of any unearned advance fee, so as to ensure an orderly transition to substitute counsel.

Currency note

This opinion was issued in 1992, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer withdraw because the client won't follow advice?

A: Per the opinion, yes. The Commission concluded withdrawal was permissible under Rule 1.16(b)(3) where the client insisted on an objective the lawyer considered repugnant or imprudent and repeatedly refused to heed advice.

Q: Did the client's criminal conduct factor into the analysis?

A: Yes. The opinion noted the client's malicious-mischief conviction and his persistence in conduct the lawyer reasonably believed could contravene the law, citing the Comment to Rule 1.16 on withdrawal where a client persists in criminal or fraudulent conduct.

Q: What must the lawyer do when withdrawing?

A: The opinion directed compliance with Rule 1.16(d): reasonable notice, time to find new counsel, surrender of papers and property the client is entitled to, and refund of any unearned advance fee.

Background and rules framework

The opinion interprets Rule 1.16 (Model Rule 1.16, declining or terminating representation) of the Alabama Rules of Professional Conduct, applying the permissive-withdrawal ground in subsection (b)(3) and the protective duties of subsection (d).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 / Ala. R. Prof. C. 1.16(b)(3) (permissive withdrawal; repugnant or imprudent objective)
• Model Rule 1.16 / Ala. R. Prof. C. 1.16(d) (duties to protect the client on termination)

See also

• AL Ethics Op. 1992-05: whether a firm can hold paid files over an unpaid matter
• AL Ethics Op. 1992-17: non-refundable retainers and confidential settlements

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1992-04/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-92-04.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-92-04

QUESTION:

"This is to follow up our conversation of last week in which we discussed my firm's position in a lawsuit in South Alabama. Please accept this letter as my law firm's request for guidance on the question of whether we may ethically withdraw from the case at this point.

A brief rendition of the facts of the case may be helpful to you. In May of 1991, my law firm became involved in a lawsuit in ______ county, Alabama. We filed suit alleging, among other things, breach of contract, fraud, and environmental damage.

The facts which gave rise to the lawsuit are as follows. At one time, our clients were the owners of a 250 acre tract of property near the City of __, Alabama. Our clients fell into financial difficulty and found it necessary to sell this tract of land. The defendant in the ____ County lawsuit is the purchaser of the property. The defendant purchased the entire tract with the exception of one-acre parcel which sits in the middle of the tract. Our client's dwelling sits on this one-acre parcel. Our client has access to his property by way of an access easement which runs from his one acre to the public highway. A rough sketch of the property is enclosed to aid you in visualizing the area.

As part of the conveyance, our clients negotiated a right to repurchase the property within three years of the sale. There is some question as to whether our clients will ever be in a position to exercise the option due to their financial condition.

Subsequent to the sale of the property, the defendant began to do a considerable clean up operation on his newly purchased property. The defendant began to tear down a number of old, rotted chicken houses which were on the property. The defendant also destroyed and completely rebuilt a dam for a large pond on the property. Furthermore, the defendant cleared a good deal of what he considered 'trash' trees from the property. During his clean up operation, the defendant began to dig large pits on the property. Old tires were trucked to the property and thrown into the pits, along with trash generated from the tearing down of the chicken houses and clearing of the trash trees. All of the materials in the pits were then set afire and allowed to burn freely.

These pits with burned refuse in them amount to an illegal dump under ADEM regulations. Thus, we filed a lawsuit against the defendant because of this alleging fraud and breach of contract. Our theory is that the illegal dump amounts to an unreasonable and bad faith interference with our clients' right to repurchase the property within three years.

Subsequent to our filing of the lawsuit, one of our clients began what amounts to a feud with the defendant. Our client has become involved in several petty disputes with the defendant, which in our view, have materially diminished our ability to represent him in this case.

The first indication of a problem came to us several months ago when our client was accused of malicious mischief in the second degree. The defendant alleged that our client had maliciously damaged a cattle gate which he had placed up on his property. The gate was also at the point of beginning of my client's access easement to his reserved one acre of property. However, at that time, the defendant had not placed a lock on the gate nor had he restricted my client's access to his property in any way. Despite this fact, my client admitted that he had taken the gate off the hinges and had bent its hinges in such a way as to prevent its being rehung. This case was eventually tried in ______ Municipal Court and our client was convicted of malicious mischief.

After this incident, I explained to our client that he must refrain from these petty squabbles with the defendant. I told him in no uncertain terms that if he had a problem with the defendant he should call me first before he did anything.

Recently, I received a call from the defendant's attorney. He informed me that the defendant's gate had been left open and that the defendant's cows had been allowed to wander away from the property. This created a significant hazard to area motorists.

I confronted my client about this incident. He did not deny that he left the gate open and allowed the defendant's cows to escape. However, he did state to me that he would not 'recognize' the defendant's right to put up a gate on the property because he considered it to be an unreasonable interference with his access easement. My client contends that he owns the property which is described within the bounds of the access easement. Despite my best efforts to explain to him the rights of an easement owner, he contends that he owns the area described within the easement and will tolerate no interference with it.

After this latest incident with the defendant's cows, the defendant's lawyer and I discussed a compromise whereby the defendant would be allowed to put a lock on his gate so that he would know it would be secure. However, the defendant would provide my client with a key to the lock so that he could freely have access to his property. I relayed this proposition to my client and he flatly refused to go along with it. He still contends that he owns the easement property and that he should not have to have a key to get onto his own property.

At this point, it is obvious to me that my client does not wish to heed my advice nor does he intend to cooperate in my firm's representation of him. On the contrary, it is obvious to me that my client intends to continue his petty feud with the defendant. It is obvious to me and my partners that our case has already been materially damaged by our client's actions thus far. Our question is whether we may ethically withdraw at this point because our client refuses to cooperate with us or follow our advice."

ANSWER:

You may ethically withdraw from representation of your client at this point due to your client's refusal to cooperate with you or follow your advice.

DISCUSSION:

The applicable ethical principle concerning your fact situation is found at Rule 1.16, Alabama Rules of Professional Conduct (ARPC), specifically, subsection (b)(3), which states as follows:

"Rule 1.16 Declining or Terminating Representation

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

(3) the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;".

Pursuant to Rule 1.16(b)(3), you may withdraw from representing the present client since the client has demonstrated by his past actions his refusal to heed your advice and conduct himself in accordance with applicable law. As stated in the Comment to Rule 1.16:

"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."

Based on the prior misconduct and conviction of your client, and his refusal to accept the requirements of the law applicable to the property rights he possesses, you may ethically withdraw from representation of the client. This conclusion is further supported by your belief, based on your client's previous actions, that he will, in the future, continue to refuse to follow your advice and possibly contravene other laws applicable to his particular situation.

Consistent with your withdrawal, please heed the provisions of Rule 1.16(d) which states as follows:

"Rule 1.16 Declining or Terminating Representation

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law."

Strict compliance with this provision of the Rules of Professional Conduct would insure transition for the client to possible substitute counsel, and likewise conform your conduct in these matters to the Rules of Professional Conduct.

JAM/bm

2/13/92