When a lawyer and client have signed a discharge agreement but the court has not yet relieved the lawyer, must the lawyer still respond to discovery, depositions, and hearings?

Plain-English summary

The lawyer took a federal litigation case under a fee agreement requiring the client to maintain a minimum retainer. The retainer fell below the minimum, the client could not replenish it or pay the outstanding bill, and the lawyer and client signed a written agreement discharging the lawyer. The lawyer notified opposing counsel and circulated a consent order, but the judge advised he would relieve the lawyer only on motion and hearing. Meanwhile the client was served with discovery and a deposition notice; the motion to be relieved was filed but no hearing was set. The lawyer asked what obligation remained to respond to discovery, depositions, and hearings.

The committee concluded that Rule 1.16(c) requires a lawyer to obtain the appropriate tribunal's permission before terminating a representation, and that when ordered to do so a lawyer must continue the representation notwithstanding good cause to terminate. It cited Ex Parte Strom, where the South Carolina Supreme Court held a court order is required to relieve a lawyer of record under Rule 11(b) of the South Carolina Rules of Civil Procedure, and Culbertson v. Clemens. The committee noted that, while it does not address questions of law, Federal Local Rule 83.I.07 is consistent with Rule 11(b) and likewise requires leave of court before a lawyer's name may be stricken, and that, notwithstanding federal pre-emption and abstention doctrines, the dictates of Ex Parte Strom control the lawyer's obligation to the client.

The committee held that the scope and allocation of authority under Rule 1.2 are subject to Rule 1.16(c)'s requirement of tribunal permission before terminating representation. The lawyer must continue to provide competent representation until the court grants relief. To the extent possible, the lawyer may request extensions of time for discovery responses or postpone depositions, but is not relieved of the obligation to the client until the court grants permission.

In practice

Under this opinion, signing a discharge agreement and circulating a consent order do not end the lawyer's duties; the representation continues until the court enters an order relieving the lawyer. The committee held that, under Rule 1.16(c), the lawyer must keep providing competent representation, including responding to discovery and appearing for depositions and hearings, and that the lawyer may, where possible, request extensions or postpone depositions while the motion to be relieved is pending. It grounded the continuing duty in Ex Parte Strom and Rule 11(b) of the South Carolina Rules of Civil Procedure.

Common questions

Q: Does a signed discharge agreement end the lawyer's duties to the client?

A: No. The committee concluded that under Rule 1.16(c) the lawyer needs the court's permission to terminate the representation, so the duties continue until the court grants the motion to be relieved.

Q: Must the lawyer still respond to discovery and attend depositions while the motion is pending?

A: Yes. The committee held the lawyer must continue to provide competent representation, including discovery responses and depositions, until relieved by the court.

Q: Can the lawyer do anything to manage the burden in the meantime?

A: The committee said the lawyer may, to the extent possible, request extensions of time for discovery responses or postpone depositions, but is not relieved of the obligation until the court grants permission.

Background and rules framework

The opinion applies South Carolina Rule 1.16(c) (a lawyer must comply with applicable law requiring tribunal permission to withdraw, and must continue when ordered to do so) and Rule 1.2 (scope of representation and allocation of authority, which it holds is subject to Rule 1.16(c)). These correspond to the like-numbered Model Rules. The committee read the rules against Ex Parte Strom and Rule 11(b) of the South Carolina Rules of Civil Procedure, noting consistency with Federal Local Rule 83.I.07.

Citations and references

Rules of Professional Conduct:

• MR 1.16 / SC Rule 1.16(c) (tribunal permission to terminate representation; continue when ordered)
• MR 1.2 / SC Rule 1.2 (scope of representation; allocation of authority)

Rules of court:

• Rule 11(b), South Carolina Rules of Civil Procedure (court order required to relieve counsel of record)
• Federal Local Rule 83.I.07 (leave of court required to strike an attorney's name)

Cases:

• Ex Parte Strom, 343 S.C. 257, 539 S.E.2d 699 (2000), court order required to relieve a lawyer as counsel of record
• Culbertson v. Clemens, 322 S.C. 20, 471 S.E.2d 163 (1996)

See also

• SC Bar Ethics Op. 07-07: Advocate-Witness Exceptions
• SC Bar Ethics Op. 06-10: GAL Blocks Discovery of Assets
• SC Bar Ethics Op. 04-12: Public Defender Caseloads

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-08-01/
• Original PDF: https://www.scbar.org/media/cq1ngjug/08-01.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 08-01

SC Rules of Professional Conduct: 1.2; 1.16

Facts: Attorney undertakes a federal litigation case pursuant to fee agreement that requires the client to maintain a minimum retainer amount. Client’s retainer amount falls below this minimum, and lawyer demands that client replenish retainer. However, client is unable to replenish retainer or pay outstanding bill. Attorney and client execute written agreement discharging attorney from representation of client. Attorney notifies all opposing counsel and circulates a consent order.

Attorney submits consent order to judge who advises that he will only relieve attorney upon motion and hearing. Client is served with discovery requests, and his deposition is noticed. The motion to be relieved as counsel has been filed, and no hearing date has been set.

Question: What is attorney’s obligation to represent client in responding to discovery requests and depositions and hearings?

Summary

Rule 1.16(c), South Carolina Rules of Professional Conduct (SCRPC), requires a lawyer to have permission of the appropriate tribunal before terminating representation. Until such relief is granted, the lawyer is obligated to provide competent representation.

Opinion

Rule 1.16(c), SCRPC, provides that a lawyer obtain permission of the appropriate tribunal before terminating representation:

A lawyer must 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.

In Ex Parte Strom, 343 S.C. 257, 539 S.E.2d 699 (2000), the South Carolina Supreme Court held that a court order is required to relieve a lawyer as counsel of record pursuant to Rule 11(b), South Carolina Rules of Civil Procedure (SCRCivP). See alsoCulbertson v. Clemens, 322 S.C. 20, 471 S.E.2d 163 (1996). Thus, the lawyer may not withdraw from representation until given permission by the court. While the Committee does not address questions of law, Federal Local Rule 83.I.07 is consistent with Rule 11(b), SCRCivP, and requires that an attorney obtain leave of the court before his or her name may be stricken from the record. Notwithstanding the doctrines of federal pre-emption and abstention, the Committee advises that the dictates of Ex Parte Strom control the lawyer’s obligation to the client.

Accordingly, the scope and allocation of authority contemplated by Rule 1.2, SCRPC, are subject to Rule 1.16(c) that requires permission of the appropriate tribunal before terminating representation. It is the opinion of the Committee that the lawyer must continue to provide competent representation to the client until relief is given by the court. To the extent possible, the lawyer may request extensions of time for responses to discovery requests or postpone depositions. However, under these circumstances, the lawyer is not relieved of his or her obligation to the client until permission is granted by the court.