When an Arizona lawyer withdraws from a case, what duties continue, what confidences can be disclosed, and can the lawyer bill for the withdrawal?
Apply this to your situation
This page answers the general question as of 2020. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The committee issued this opinion sua sponte to address recurring questions at the intersection of ER 1.16 (withdrawal) and ER 1.6 (confidentiality), plus whether a lawyer may bill for withdrawal-related work. It answers four questions.
On a lawyer's responsibilities when withdrawing, ER 1.16 sets the grounds for mandatory and permissive withdrawal, and ER 1.16(c) requires following the tribunal's procedures; when a court orders the lawyer to continue, the lawyer must continue notwithstanding good cause to withdraw. The lawyer may seek relief from a higher tribunal, but until relief is granted must keep representing the client competently and diligently under ER 1.1 and ER 1.3. Withdrawal does not relieve the confidentiality duty: the committee directs that when a court asks why the lawyer is withdrawing, the lawyer should ordinarily rely on Comment 3 to ER 1.16 and state that "professional considerations require termination," rather than reveal the client's confidences. Reading ER 1.6(d)(4) (disclosure to respond to allegations) narrowly through Ariz. Op. 93-02, the committee stresses that disclosure is limited to what is "reasonably necessary," a judgment for the lawyer after careful assessment, and suggests an ex parte submission where some disclosure is unavoidable.
On billing, ER 1.5 requires fees to be reasonable. The committee surveys the split between North Carolina (2007 N.C. Op. 8), which generally bars charging for a motion to withdraw because obtaining the court's permission is the lawyer's own professional obligation, and Michigan (RI-296), which allows a charge when the client chose the withdrawal. Arizona adopts neither categorical rule, instead referring lawyers to ER 1.5's reasonableness requirement: work reasonably undertaken to support a smooth transition is generally chargeable if consistent with the fee agreement and not solely caused by the lawyer's own circumstances, and the lawyer must be able to justify each charge.
On duties to the former client, ER 1.16(d) requires steps to protect the client's interests, including surrendering the file and refunding unearned fees, and the client is entitled to the file even if money is owed (consistent with EO-19-0009). ER 1.9(c) and ER 1.6 impose continuing confidentiality to former clients. On disclosures to successor counsel, any disclosure not allowed by ER 1.6(a) is prohibited regardless of the reason for withdrawal, but advising new counsel of court dates, case status, and what is needed for a smooth transfer is impliedly authorized when it advances the client's interests; transfer of the file itself is likewise impliedly authorized. The committee recommends that the withdrawing lawyer, whenever possible, confirm the transfer directly with the client and obtain informed consent to disclose specific confidential information.
In practice
The opinion holds that, under the Arizona Rules as they stood in 2020, withdrawal does not suspend the duties of competence, diligence, and confidentiality, and that a lawyer questioned by a court about the reasons for withdrawal should ordinarily invoke "professional considerations" rather than disclose client confidences, limiting any ER 1.6(d) disclosure to what is reasonably necessary. Withdrawal-related fees are governed by ER 1.5 reasonableness rather than a per-se rule, and the client is entitled to the file regardless of an outstanding balance. Because rules and later opinions may have changed since 2020, verify the current ER 1.16 and ER 1.6 framework before relying on these specifics.
Common questions
Q: Does an Arizona lawyer have to explain to the court why they are withdrawing?
A: Ordinarily no, not in a way that reveals confidences. The opinion applies Comment 3 to ER 1.16: the lawyer's statement that "professional considerations require termination of the representation" should ordinarily be accepted as sufficient, and the lawyer should resist disclosing the client's confidences.
Q: Can a lawyer bill the client for preparing and filing a motion to withdraw?
A: Arizona does not adopt a flat yes or no. The opinion refers lawyers to ER 1.5's reasonableness standard: work reasonably undertaken toward a smooth transition is generally chargeable if the fee agreement allows it and the withdrawal is not solely due to the lawyer's own circumstances, and the lawyer must justify each charge.
Q: Does the client get the file if they still owe the lawyer money?
A: Yes. The opinion applies ER 1.16(d): even when money is owed, the client is entitled to the client's property, including the file, consistent with EO-19-0009.
Q: What can a withdrawing lawyer tell successor counsel without the client's consent?
A: Information impliedly authorized to protect the client, such as pending court dates, a detailed status of the matter, and what is needed for a smooth transfer. The opinion treats other disclosures as prohibited unless ER 1.6(a) allows them, and recommends confirming the transfer and getting the client's informed consent where possible; if the withdrawal arose from a conflict, briefing successor counsel may be imprudent.
Background and rules framework
The opinion interprets ER 1.16 (declining or terminating representation, including the duty to continue when ordered and to protect the client on termination; Model Rule 1.16) in tandem with ER 1.6 (confidentiality, including the ER 1.6(d) exceptions; Model Rule 1.6), ER 1.9(c) (continuing duties to former clients; Model Rule 1.9), ER 1.5 (reasonable fees; Model Rule 1.5), and ER 3.3 with its Comment 15 (candor to the tribunal; Model Rule 3.3). It also relies on the Restatement (Third) of the Law Governing Lawyers section 61.
Citations and references
Rules of Professional Conduct:
- MR 1.16 / Arizona ER 1.16(c), (d), cmt. 3 (withdrawal procedure and duties on termination)
- MR 1.6 / Arizona ER 1.6(a), (d)(4) (confidentiality and the response-to-allegations exception)
- MR 1.9 / Arizona ER 1.9(c) (continuing duties to former clients)
- MR 1.5 / Arizona ER 1.5 (reasonable fees)
- MR 3.3 / Arizona ER 3.3, cmt. 15 (candor to the tribunal)
Cases:
- Lawyer Disciplinary Bd. v. Farber, 488 S.E.2d 460 (W. Va. 1997), lawyer violated Rule 1.6 by disclosing plea discussions in a withdrawal affidavit
Other authority:
- Restatement (Third) of the Law Governing Lawyers section 61 (disclosure to advance the client's interests)
Other opinions cited:
- 2007 N.C. Ethics Op. 8: lawyer generally may not charge for the cost of a motion to withdraw
- Michigan Ethics Op. RI-296: lawyer may charge for client-chosen withdrawal work; briefing successor counsel may taint where a conflict exists
- State Bar of Arizona Ethics Ops. 93-02, 94-02, 00-11, 04-01, 05-05, 08-02, 09-02, 15-02 (nonbinding prior guidance)
- AZ Ethics Op. EO-19-0009: client-file retention and production
See also
- ABA Formal Op. 476: Confidentiality in Withdrawal for Nonpayment
- ABA Formal Op. 519: Confidentiality in a Motion to Withdraw
- ABA Formal Op. 516: Material Adverse Effect and Permissive Withdrawal
- ABA Formal Op. 471: Surrendering File Papers to a Former Client
- AZ Ethics Op. EO-19-0009: Client-File Retention Duties
Source
- Landing page: https://www.azcourts.gov/cld/Attorney-Ethics-Advisory-Committee/Opinions-Issued-by-the-Committee
- Original PDF: https://www.azcourts.gov/Portals/0/26/AEA%20Committee/Issued%20Opinions/EO-20-0001.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
SUPREME COURT OF ARIZONA
ATTORNEY ETHICS ADVISORY COMMITTEE
Ethics Opinion File No. EO-20-0001
The Attorney Ethics Advisory Committee was created in accordance with Rule 42.1 and Administrative Order Nos. 2018-110 and 2019-168.
Lawyer-client relationships sometimes end earlier than the lawyer and client anticipated at the start
of the representation. A lawyer’s withdrawal from representation is not always agreed upon by
the client and may also be under touchy circumstances, such as dishonesty of the client or non-
payment of fees owed to the lawyer. Further, a client may fire a lawyer at any time, for good or
bad reasons. A lawyer faced with such situations must uphold the lawyer’s ethical responsibilities
to the client despite that the representation is at, near, or has reached an end. Client confidentiality
must be protected unless the ethical rules specifically allow disclosure, and any disclosures must
be made as narrowly as possible. If, in a court setting, the tribunal does not allow the withdrawal,
the lawyer can seek relief from a higher court, but must protect the client’s interests and
competently represent the client until and unless an order for withdrawal is granted. A
withdrawing lawyer must advise the client and new counsel of pending court dates, status of the
case, and anything else necessary and appropriate for the smooth transfer of the representation.
Any fees charged to the client for withdrawal-related work must be reasonable. Of course, the
client is entitled to the client file consistent with Ethics Opinion No. EO-19-0009, regardless of
the circumstances for the withdrawal.
FACTS
Lawyers have raised many questions about ethical obligations when a decision for
withdrawal from representation has been made. These questions most often involve the
intersection of ER 1.16 (withdrawal) and ER 1.6 (confidentiality obligations). Questions
also frequently arise regarding whether fees may be charged for withdrawal-related work.
In light of these frequent requests for ethics advice, the Attorney Ethics Advisory
Committee has chosen to issue this formal opinion sua sponte.
QUESTIONS PRESENTED
1. What are a lawyer’s ethical responsibilities when withdrawing from representation of a
client?
2. May a lawyer charge a client for withdrawal-related work?
3. What obligations does the withdrawn lawyer have to the former client?
4. What confidential client information can be disclosed, either orally or as part of the client
file, by withdrawn counsel to successor counsel in the absence of the client’s informed
consent?
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APPLICABLE ARIZONA RULES OF PROFESSIONAL CONDUCT (“ER _”)
ER 1.5 Fees
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee.
....
ER 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless
the client gives informed consent, the disclosure is impliedly authorized in order to carry
out the representation or the disclosure is permitted or required by paragraphs (b), (c) or
(d), or ER 3.3(a)(3).
....
Comment
[21] 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 ER 1.16(a)(1). After
withdrawal the lawyer is required to refrain from making disclosure of the client’s
confidences, except as otherwise provided in ER 1.6. Neither this Rule nor ER 1.8(b) nor
ER 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.
ER 1.9 Duties to Former Clients
...
(c) A lawyer who has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client
except as these Rules would permit or require with respect to a client, or when the
information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or
require with respect to a client.
ER 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:
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(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 shall comply with applicable law 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.
(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 documents and property to
which the client is entitled and refunding any advance payment of a fee that has not been
earned. Upon the client’s request, the lawyer shall provide the client with all of the client’s
documents, and all documents reflecting work performed for the client. The lawyer may
retain documents reflecting work performed for the client to the extent permitted by other
law only if retaining them would not prejudice the client’s rights.
Comment
[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires
approval of the appointing authority. See also ER 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 ERs 1.6 and 3.3.
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ER 3.3 Candor Toward the Tribunal
Comment
[15] Normally, a lawyer’s compliance with the duty of candor imposed by this Rule does
not require that the lawyer withdraw from the representation of a client whose interests will
be or have been adversely affected by the lawyer’s disclosure. The lawyer may, however,
be required by ER 1.16(a) to seek permission of the tribunal to withdraw if the lawyer’s
compliance with this Rule’s duty of candor results in such an extreme deterioration of the
client lawyer relationship that the lawyer can no longer competently represent the
client. Also see ER 1.16(b) for the circumstances in which a lawyer will be permitted to
seek a tribunal’s permission to withdraw. In connection with a request for permission to
withdraw that is premised on a client’s misconduct, a lawyer may reveal information
relating to the representation only to the extent reasonably necessary to comply with this
Rule or as otherwise permitted by ER 1.6.
RELEVANT ARIZONA ETHICS OPINIONS
State Bar of Arizona, Rules of Professional Conduct Committee, 1 Ariz. Ops. 93-02, 94-02, 00-11,
04-01, 05-05, 08-02, 09-02, 15-02.
Supreme Court of Arizona Attorney Ethics Advisory Committee, Ethics Op. EO-19-0009.
OTHER RELEVANT ETHICS OPINIONS
2007 N.C. Ethics Op. 8; Mich. Ethics Op. RI-296
OPINION
- What are a lawyer’s ethical responsibilities when withdrawing from representation
of a client?
ER 1.16 sets forth the circumstances under which a lawyer may and shall withdraw from further
representation of a client. See ER 1.16(a) and (b). The lawyer’s responsibility to follow the law
and procedures of the tribunal in attempting withdrawal is set forth in ER 1.16(c). Further, “[w]hen
ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause
for terminating the representation.” ER 1.16(c). The lawyer is not prohibited from seeking
withdrawal relief from a higher tribunal. While the lawyer is seeking relief, and if relief is not
sought or granted, at all times the lawyer must continue to represent the client competently and
diligently. ERs 1.1 and 1.3.
ER 1.16 does not relieve the withdrawing lawyer from the duties of confidentiality set forth in ER
1.6. This Committee cautions the withdrawing lawyer to carefully review and follow ER 1.6
during the withdrawal process. Comment [3] to ER 1.16 addresses the practical problem that a
lawyer seeking to withdraw may face questions from the tribunal about the reasons for withdrawal:
“The court may request an explanation for the withdrawal, while the lawyer may be bound to keep
1
Opinions issued by the State Bar of Arizona’s former Rules of Professional Conduct Committee are nonbinding.
Page 5
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.”
ER 1.6(d)(4) allows disclosure of confidential information “to respond to allegations in any
proceeding concerning the lawyer’s representation of the client.” Yet, that disclosure must be made
only “to the extent the lawyer reasonably believes necessary.” ER 1.6(d). The withdrawing lawyer
ordinarily should resist any disclosure during the withdrawal process in favor of citing and
following the directions in Comment [3] to ER 1.16 to state that professional considerations require
withdrawal of the lawyer. See Lawyer Disciplinary Bd. v. Farber, 488 S.E.2d 460 (W. Va. 1997)
(lawyer moving to withdraw from representation violated Rule 1.6 by adding affidavit reporting
on his plea discussions with defendant).
“Reasonably necessary” has been construed quite narrowly in connection with ER 1.6(d)(4)
disclosures. Ariz. Op. 93-02 (March 1993) addressed whether the inquiring lawyer could speak
to an author and refute the former client’s accusations to the author that the lawyer had represented
the client incompetently and had engaged in a conspiracy with the prosecution. In holding that the
Ethical Rules allow the lawyer to do so, the narrowness of the “reasonably necessary” component
of ER 1.6(d) was stressed:
We emphasize that our conclusion should not imply that an attorney may simply open his
or her file in response to any such derogatory allegations. ER 1.6(d) permits disclosure
only to the extent the lawyer reasonably believes necessary to establish a claim or defense.
Therefore, an attorney must determine whether he or she can adequately establish a claim
or defense against accusations of misconduct without disclosing information protected by
ER 1.6(a). Whether disclosure is “reasonably necessary” for the purposes of ER 1.6(d) is
ultimately within the independent judgment of the attorney involved, after a careful
assessment of the facts and the nature of the controversy.
Ariz. Op. 93-02.
Even when a lawyer has learned that his or her client has submitted fraudulent evidence warranting
the lawyer to withdraw the evidence, the lawyer must first try to withdraw the evidence without
revealing that the client submitted fraudulent evidence:
If an attorney can refuse to offer evidence the attorney reasonably believes to be false, see
ER 3.3(a)(3), there seems to be no good reason why the attorney could not move to
withdraw evidence from a tribunal’s consideration that he or she knows to be false. This
measure, too, should be done without revealing any client misconduct. The attorney should
cite client confidentiality, attorney-client privilege, and the client’s Fifth Amendment
privilege, if appropriate, should the tribunal insist upon an explanation why the attorney is
seeking withdrawal of the evidence.
Ariz. Op. 05-05 (July 2005) (footnotes omitted). See also ER 3.3, Comment [15] (“In connection
with a request for permission to withdraw that is premised on a client’s misconduct, a lawyer may
reveal information relating to the representation only to the extent reasonably necessary to comply
with this Rule or as otherwise permitted by ER 1.6.”)
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Given the narrowness of exceptions to the confidentiality requirements of ER 1.6 even in light of
a lawyer’s obligation of candor towards the tribunal as set forth in ER 3.3, if the lawyer believes
it is reasonably necessary to disclose a client confidence as part of withdrawal proceedings, the
withdrawing lawyer should consider whether an ex parte submission may be warranted and
permitted under the rules of the tribunal.
Comment [15] to ER 3.3 supports a lawyer revealing the least possible confidential information in
support of the lawyer’s withdrawal: “In connection with a request for permission to withdraw that
is premised on a client’s misconduct, a lawyer may reveal information relating to the representation
only to the extent reasonably necessary to comply with this Rule or as otherwise permitted by ER
1.6.”
Withdrawing and withdrawn lawyers also should be mindful that what constitutes confidential
information about the client is construed quite broadly. In addressing what a lawyer should do
when subpoenaed for client information, the State Bar of Arizona Rules of Professional Conduct
Committee, in Ariz. Op. 00-11 (November 2000), wrote: “Under ER 1.6, a lawyer is required to
maintain the confidentiality of all information relating to representation, regardless of the fact that
the information can be discovered elsewhere.... Indeed, the lawyer is required to maintain the
confidentiality of information relating to representation even if the information is a matter of public
record.” (Internal citations omitted.)
Despite the lawyer’s obligation to keep a client’s confidences, Comment [21] to ER 1.6 is clear
that, once withdrawn, the lawyer may give notice of the fact of withdrawal, “and the lawyer may
also withdraw or disaffirm any opinion, document, affirmation, or the like.” See Ariz. Op. 05-05.
- May a lawyer charge a client for withdrawal-related work?
A lawyer’s charged fees must be reasonable. See ER 1.5. Neither ER 1.5 nor its comment
addresses the particular circumstances of whether a lawyer may charge for withdrawal-related
work such as preparation, filing, and arguing a motion to withdraw. Other jurisdictions have
addressed this question, however, in 2007 N.C. Ethics Op. 8 (http://www.ncbargoviethics) (July
13, 2007), the North Carolina State Bar opined that the act of the withdrawal with the Court is the
professional obligation of the lawyer, and therefore the lawyer may not shift the cost of the
withdrawal to the client. “Whether the client or the lawyer is the first to conclude that the
relationship must end, determining who is at fault or the motivation of the client or the lawyer
when ending the relationship is often impossible and, ultimately, beside[s] the point. Regardless
of who may be at fault, the cost of the work necessary to file and argue a motion to withdraw must
be incurred because the lawyer is required by the Rules of Professional Conduct and the court rules
to obtain the permission of the court to withdraw.” Further, in North Carolina, a fee agreement
provision requiring the client to pay for the cost of preparing, filing, and arguing a motion to
withdraw if the client terminates the lawyer’s services is improper because “[s]uch a provision
would have an improper chilling effect on a client’s right to terminate a lawyer’s services at will.”
Id. 2
2
[1] See Ariz. Op. 94-02 (March 1994) (In opining that a fee agreement provision preventing the client
from discharging the lawyer without “good cause” was unethical, the State Bar of Arizona Rules of
Page 7
North Carolina poses two exceptions to the general rule of not charging for withdrawal-related
work. One exception is when “a lawyer must file a motion to withdraw, with the consent of the
client, to advance the client’s objectives for the representation and not because the client is
dissatisfied with the lawyer’s services or the lawyer wishes to terminate the representation.” Id.
An example:
[A]n insurance carrier hires a lawyer to defend its insured in a personal injury lawsuit.
Before trial, the carrier offers the full policy limits to the plaintiff. The carrier hires another
lawyer to file the appropriate motion seeking to have the carrier relieved of its duty to
defend the insured. The lawsuit must go forward, however, to determine whether there is
liability entitling the plaintiff to recover the proceeds from an underinsured or other excess
liability insurance policy. If the motion to be relieved of the duty to defend is allowed, the
lawyer originally hired to defend the insured must make a motion to withdraw to further
the insurance carrier’s objective of being relieved of the duty to defend. The insurance
carrier typically anticipates and assumes that it will pay the legal fees associated with the
preparation and presentation of the motion to withdraw.
Id.
The second exception identified by North Carolina is where a court-appointed lawyer’s withdrawal
is necessary because of a conflict of interest, a breakdown of the relationship, or other similar
circumstance, and the cause of such is not the lawyer’s conduct. “Judicial review provides
oversight to insure that the fee charges are warranted and, unlike in private representation, seeking
compensation for filing the motion will not have a chilling effect on the client’s right to terminate
the relationship.” Id.
The State Bar of Michigan’s Standing Committee on Professional and Judicial Ethics takes
somewhat of a different view, allowing the lawyer to charge a client for withdrawal-related
services if the withdrawal is the client’s choice and the lawyer has explained the consequences of
withdrawal to the client, including the cost:
When a client seeks to discharge a lawyer, the lawyer has an obligation under MRPC 1.4(b)
to explain to the client the effect of the withdrawal, including the likelihood of the judge
granting the withdrawal under MRPC 1.16(c), that the lawyer continues as counsel until
the judge grants the motion to withdraw, and that the motion to withdraw may not terminate
the lawyer’s ethical obligations to refrain from assisting illegal or fraudulent conduct of the
client [MRPC 1.2(c), 1.2(d), 3.3(a)]. Presuming that the lawyer has fulfilled all obligations
at the time of the contract and at the time withdrawal is requested, and as in this case, the
contract is hourly [not contingent or fixed fee], the lawyer may charge to fulfill the client’s
wishes.
Professional Conduct Committee stated: “Such a provision would likely discourage or deter a client, who
no longer had confidence in or even distrusted counsel, from discharging the lawyer and hiring a new
lawyer.”)
Page 8
On the other hand, when it is the lawyer who has decided to withdraw, whether with cause
or otherwise, the lawyer is not serving the interest of the client and therefore may not charge
the client for expenses incurred in seeking the withdrawal.
Mich. Ethics Op. RI-296 (July 15, 1997) (http://www.michbar.org/opinions)
While the North Carolina opinion better serves the client’s right to have counsel of his or her own
choice , we do not believe the circumstances a lawyer may charge for withdrawal-related work are
as narrow as adopted in North Carolina. Because a breakdown in a lawyer-client relationship is
often difficult to distill down to client choice or lawyer choice (and in the same case, the client and
the lawyer may perceive the decision-maker and the reasons therefor differently), we do not adopt
the Michigan decision. Rather, we refer withdrawing lawyers to the reasonableness requirement
of ER 1.5. The work a lawyer reasonably undertakes in support of a smooth transition to new
counsel or pro per representation is usually work that may be charged to the client if otherwise
appropriate under the fee agreement and if the withdrawal is not clearly solely due to the lawyer’s
circumstances (such as a lawyer closing the lawyer’s law office in favor of public employment).
Nevertheless, clients will likely scrutinize closely withdrawal-related charges, and a lawyer must
be able to justify all such charges as reasonable under the circumstances.
- What obligations does the withdrawn lawyer have to the former client?
“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 documents and property to which the client is entitled
and refunding any advance payment of a fee that has not been earned.” ER 1.16(d). Even if money
is owed by the client to the withdrawn lawyer, the client is entitled to the client’s property,
including the file. See ER 1.16(d); Ariz. Ops. 04-01 (January 2004) and 08-02 (December 2008)
(as amended by Ariz. Op. 15-02 (June 2015)); Ariz.Ethics Opinion No. EO-19-0009.
A withdrawn lawyer can find additional ethical duties owed to former clients generally set forth in
ER 1.9 and ER 1.6 because the withdrawn lawyer has an ongoing duty of confidentiality even after
termination of a representation. For example, ER 1.9(c) makes clear that duties of confidentiality
continue for former clients:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former
client except as these Rules would permit or require with respect to a client, or when the
information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit
or require with respect to a client.
- What confidential client information can be disclosed, either orally or as part of the
client file, by withdrawn counsel to successor counsel in the absence of the client’s
informed consent?
When a lawyer withdraws from a representation or is terminated by the client, any disclosure of
confidential information relating to the representation of the client to successor counsel or
prospective successor counsel not specifically allowed by ER 1.6(a) is prohibited regardless of the
Page 9
reason for the withdrawal or termination. It frequently happens that when a representation is being
transferred from one lawyer to another, the withdrawing or terminated lawyer has little or no direct
communication with the client and, therefore, limited opportunity to obtain the client’s informed
consent to disclose confidential information to successor counsel. Exactly what steps a
withdrawing or withdrawn lawyer must follow for the orderly transition of the matter will be a
case-by-case analysis.
In most situations, a withdrawing lawyer must advise the new counsel (as well as the client) of any
pending court dates, a detailed status of the matter and issues, and anything else necessary and
appropriate for the smooth and efficient transfer of the representation. Confidential disclosures of
this nature to new counsel are impliedly authorized by ER 1.6(a) so long as the withdrawing lawyer
reasonably believes that the disclosures will advance the interests and objectives of the client in
the representation. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §
61 (2000) (“A lawyer may use or disclose confidential client information when the lawyer
reasonably believes that doing so will advance the interests of the client in the representation.”).
The withdrawing lawyer, however, must always remain mindful of reasons that may make further
briefing of successor counsel imprudent or not in accordance with the client’s interests and
objectives. “Indeed, if the withdrawal is occasioned by a conflict, briefing successor counsel may
taint the successor.” Mich. Ethics Op. RI-296. In short, the withdrawing or withdrawn lawyer
should participate in the transition of representation due to withdrawal such that the lawyer has
reasonably tried to minimize (or alleviate, if possible) prejudice to the client from the withdrawal.
The lawyer must always be mindful of protecting the former client’s interests during an orderly
transition to new counsel or pro per representation.
As a general rule, transfer of the client file consistent with Ariz. Ethics Opinion No. EO-19-0009
to successor counsel is impliedly authorized by ER 1.6(a) to protect the client’s interests even in
the absence of express direction from the client. However, the withdrawn counsel should
whenever possible confirm with the former client directly that the former client authorizes transfer
of the file to a specific new counsel. Lawyers should be able to accept the avowal of another
lawyer that they are taking over a client matter, but risk management considerations recommend
confirming such transfers with the client. Regardless of the basis for the authority to transfer the
file, i.e., implied or express, however, the lawyer must remain vigilant to the fact that the file may
contain confidential client information that cannot or should not be disclosed to successor counsel
without the client’s informed consent. This admonition applies to both hard-copy and electronic
file contents. In some circumstances, the client may be entitled to receive portions of the client
file that the withdrawn lawyer cannot or should not disclose directly to successor counsel in the
absence of the client’s informed consent. For instance, if the client sent threatening emails to
withdrawn counsel, it may not be prudent for withdrawn counsel to include those emails in the file
sent to new counsel, even though client is entitled to a copy of the client “file” including all
substantive documents, which includes emails. The burden is on the withdrawn lawyer to facilitate
a transfer of the client file, either to the client or to successor counsel, in accordance with the Rules
of Professional Conduct.
Because of these uncertainties inherent in transfer of the representation and client file, it is the
recommendation of the Committee that a withdrawing lawyer seek the client’s consent to disclose
specific confidential information to successor counsel as part of the transition. This approach
maximizes the probability of a complete and fully informed transfer of the representation and client
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file and applies equally when, as frequently happens, successor counsel (or prospective successor
counsel) seeks input about the matter directly from withdrawn counsel.
CONCLUSION
A client remains so until the lawyer’s withdrawal is complete regardless of the reasons for and
timing of the cessation of the lawyer-client relationship. The withdrawing lawyer must protect the
client’s interests despite any dispute between the lawyer and the client and despite any wrongdoing
of the client. Any disclosures of confidential information must be strictly limited to those
circumstances authorized by the Rules of Professional Conduct. Fees must always be reasonable
and appropriate. A withdrawing or withdrawn lawyer should participate in an orderly transition
to new counsel or pro per representation to minimize prejudice to the client from the withdrawal.
Once a lawyer is withdrawn, ethical obligations continue as for any former client.
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