If a client files grievances and pro se motions against me but not about the issue still on appeal, do I have to keep representing the client on that appeal?

Plain-English summary

A lawyer represents a client in litigation against multiple defendants. One defendant was dismissed and recovered attorney's fees, and the underlying suit settled. The client then filed pro se motions seeking relief from the settlement and two grievances against the lawyer, but none of those took issue with the dismissal and fee recovery that remained on appeal. The client has not discharged the lawyer. The question is whether the lawyer must handle the appeal of the defendant's fee recovery.

The Committee runs through several rules. Rule 1.06(b)(2) bars representation that reasonably appears to be adversely limited by the lawyer's own interests, but because the fee-recovery appeal has nothing to do with the grievances or pro se motions, the representation does not appear adversely limited by the lawyer's interests. Rule 1.15(a)(1) requires withdrawal if the lawyer knows or believes he may be a necessary witness on an essential fact for the client, but since the appeal will be decided on the trial-court record made before the settlement, there is no reason to think the lawyer is a necessary witness.

Rule 1.15(b) permits (but does not require) withdrawal in certain circumstances, such as where the client insists on an objective the lawyer finds repugnant or imprudent or fundamentally disagrees with, or has made the representation unreasonably difficult, or where withdrawal can be accomplished without material adverse effect on the client. So the lawyer may seek to withdraw. But under Rule 1.15(c), even when withdrawal is permitted, the lawyer must continue if ordered by the court. And if the lawyer does withdraw consistent with Rules 1.15(b) and (c), the lawyer must comply with Rule 1.15(d), taking reasonable steps to protect the client's interests.

In practice

Under this opinion, and under the Texas rules as they stood at the time, a lawyer cannot simply stop handling the remaining appeal because the client filed grievances and pro se motions about other parts of the case. The Committee finds no Rule 1.06(b)(2) conflict and no Rule 1.15(a)(1) necessary-witness problem on these facts. Withdrawal is only optional under Rule 1.15(b), is overridden by a court order to continue under Rule 1.15(c), and, if pursued, must satisfy Rule 1.15(d)'s steps to protect the client.

Common questions

Q: My client filed a grievance against me; can I drop the case?

A: Not automatically. Per Opinion 565, where the grievance does not relate to the matter still pending, the lawyer must continue unless permitted to withdraw under Rule 1.15(b) and the court does not order continued representation.

Q: Do the grievances create a conflict that requires me to withdraw?

A: On these facts, no. The Committee says because the pending appeal is unrelated to the grievances and pro se motions, the representation does not reasonably appear to be adversely limited by the lawyer's own interests under Rule 1.06(b)(2).

Q: If I am allowed to withdraw, can the court still make me stay?

A: Yes. The Committee notes that under Rule 1.15(c), even if a lawyer is permitted to withdraw under Rule 1.15(b), the lawyer must continue the representation when ordered to do so by the court.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 1.15 (declining or terminating representation), corresponding to ABA Model Rule 1.16: Rule 1.15(a)(1) (mandatory withdrawal when the lawyer may be a necessary witness, related to ABA Model Rule 3.7), 1.15(b) (permissive withdrawal), 1.15(c) (court order to continue), and 1.15(d) (steps to protect the client). It also applies Rule 1.06(b)(2) (conflicts based on the lawyer's own interests), corresponding to ABA Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation)
• MR 1.7 (conflict of interest, current clients)
• MR 3.7 (lawyer as witness)
• Texas Disciplinary Rule 1.15(a)(1), 1.15(b), 1.15(c), 1.15(d)
• Texas Disciplinary Rule 1.06(b)(2)

See also

• TX Ethics Op. 570: Turning Over the Lawyer's Notes to a Former Client
• TX Ethics Op. 593: Settling a Malpractice Claim With an Unrepresented Client

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-565/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_565.pdf

Original opinion text

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

QUESTION PRESENTED

Must a lawyer continue to represent a client in an appeal on a remaining matter in a case when the client has filed pro se motions seeking relief from a settlement of the case and the client has filed two grievances against the lawyer?

STATEMENT OF FACTS

A lawyer represents a client in litigation against multiple defendants. One of the defendants was dismissed and recovered attorney’s fees. The underlying suit was settled. Thereafter, the client filed pro se motions seeking relief from the settlement and two grievances against the lawyer. However, neither the client’s pro se motions nor the grievances took issue with the dismissal and the recovery of attorney’s fees by one of the defendants. The lawyer has not been discharged by the client. Must the lawyer represent the client on the appeal of the defendant’s recovery of attorney’s fees?

DISCUSSION

This question requires analysis of several provisions of the Texas Disciplinary Rules of Professional Conduct. First, Rule 1.06(b)(2) generally prohibits a lawyer’s representation of a person if the representation of that person reasonably appears to be or become adversely limited by the lawyer’s own interests. Since the client’s appeal of the defendant’s recovery of attorney’s fees has nothing to do with the grievances or the pro se motions, it would not reasonably appear that the representation of the client on that appeal is or has become adversely limited by the lawyer’s own interests.

Second, Rule 1.15(a)(1) requires that a lawyer withdraw if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the client. Since the propriety of the grant of attorney’s fees will be decided by the appellate court on the record established in the trial court prior to the settlement, there is no reason for the lawyer to know or believe that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the client.

Third, Rule 1.15(b) prohibits a lawyer from withdrawing from representation of a client unless one of several circumstances exists, including that the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement or that the representation has been rendered unreasonably difficult by the client. Assuming that by filing the grievances and pro se motions seeking relief from the settlement, the client is insisting upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has a fundamental disagreement or the client has rendered the representation unreasonably difficult, the lawyer may seek to withdraw. The lawyer is also permitted under Rule 1.15(b)(1) to seek to withdraw if the withdrawal can be accomplished without material adverse effect on the interests of the client.

Under Rule 1.15(c), even if a lawyer is permitted by Rules 1.15(b) to withdraw from representing the client, the lawyer must continue the representation when ordered to do so by the court.

If the lawyer withdraws from representation of the client in compliance with Rules 1.15(b) and 1.15(c), the lawyer must also comply with Rule 1.15(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 the employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advanced payments of fee that has not been earned.....”

CONCLUSION

The Texas Disciplinary Rules of Professional Conduct require that a lawyer continue to represent a client in an appeal on a remaining matter in a case when the client has filed pro se motions seeking relief from a settlement of the case and grievances against the lawyer unless the lawyer is permitted under Rule 1.15(b) to withdraw and the court does not require that the lawyer continue the representation. Any withdrawal from representation must be in compliance with the requirements of Rule 1.15(d) that the lawyer take reasonable steps to protect the client’s interests.

Tex. Comm. On Professional Ethics, Op. 565 (2006)