Can a lawyer withdraw from prosecuting a client's appeal when the lawyer believes the appeal is imprudent, and can a fee contract bar the client from settling?

Plain-English summary

A lawyer represented a couple on a personal injury claim. Before the work began, the lawyer had deleted, at the client's request, a portion of the legal representation agreement that excluded appellate work unless otherwise stated. After trial, the jury returned a verdict lower than the lawyer had anticipated. The lawyer asked whether the agreement obligated the lawyer to pursue an appeal, and whether the fee had to follow the contingent-fee percentages in the written agreement.

The committee advised that the lawyer could withdraw from the case or appeal under RPC 1.15(b)(3) if the lawyer honestly and reasonably believed that prosecuting the appeal was imprudent from the client's perspective. The committee gave no opinion on whether withdrawing would breach the contract or on what fee the lawyer would be entitled to, and noted that any withdrawal had to be consistent with RPC 1.15(d).

The committee also directed attention to RPC 1.2(a), which gives the client the right to authorize settlement. It observed that the contract's Section IIA provision, under which the client agreed to make no compromise or settlement without counsel's approval, appeared to violate that ethical provision.

Currency note

This opinion was issued in 1993, before the Washington State Bar Association's adoption of the 2006 revisions to the 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 Treat this page as historical context, not current guidance.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. (At the time of this opinion, Washington's withdrawal rule was numbered RPC 1.15; the corresponding ABA Model Rule is 1.16.)

Common questions

Q: Can a lawyer withdraw from a client's appeal the lawyer thinks is not worth pursuing?

A: The committee said the lawyer could withdraw under RPC 1.15(b)(3) if the lawyer honestly and reasonably believed prosecuting the appeal was imprudent from the client's perspective, and consistent with RPC 1.15(d).

Q: Did the committee decide whether withdrawing breached the fee contract?

A: No. The committee expressly gave no opinion on whether withdrawal would breach the contract or on the fee to which the lawyer would be entitled.

Q: Can a fee agreement require the lawyer's approval before the client settles?

A: The committee said a clause requiring counsel's approval of any compromise or settlement appeared to violate RPC 1.2(a), which gives the client the right to authorize settlement.

Background and rules framework

The opinion applied two rules as they stood in 1993. RPC 1.15 (corresponding to ABA Model Rule 1.16) governed declining or terminating representation, permitting withdrawal under subsection (b)(3) and requiring that withdrawal comply with subsection (d). RPC 1.2(a) (corresponding to ABA Model Rule 1.2(a)) reserves to the client the decision whether to settle, and the committee read a contract clause conditioning settlement on counsel's approval as inconsistent with that allocation.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.2(a) (allocation of authority; client's right to settle); Washington RPC 1.2(a)
• ABA Model Rule 1.16 (declining or terminating representation); Washington RPC 1.15(b)(3), 1.15(d)

See also

• WA Ethics Op. 1517: Contingent Fee Terms and Settlement Authority
• WA Ethics Op. 1518: Donation Bundled With a Legal Product

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=593

Original opinion text

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

Advisory Opinion: 1512
Year Issued: 1993
RPC(s): RPC 1.2(a); 1.15
Subject: Fee agreement; withdrawal when attorney believes appeal imprudent; authorization of settlement

The Committee reviewed your inquiry wherein you represented a couple on a claim for personal injuries. Prior to undertaking the work, you deleted at the client's request, a portion of your original Legal Representation Agreement, which indicated that the agreement did not extend to representation of the client in any appellate action, unless otherwise stated. The inquiry indicates that the case went to trial and a jury verdict lower than you had anticipated was returned. You then inquired whether or not you were obligated to pursue the appeal given the terms of your agreement. You further inquired whether or not your fee must be based upon the contingent fee percentages provided in the written agreement.

The Committee directed that you be advised that you could withdraw from the case/appeal pursuant to RPC 1.15(b)(3), if you honestly and reasonable believe prosecuting the appeal was imprudent [from the client's perspective]. However, the Committee provided no opinion as to whether such action of withdrawal would be in breach of contract or the fee to which you would be entitled. The Committee noted that any withdrawal must be consistent with RPC 1.15(d).

The Committee also wished to direct your attention to RPC 1.2(a) which gives the client the right to authorize settlement and noted that your contract, with respect to its provisions that the "client agrees to make no compromise or settlement in this matter without the approval of the Counsel", under Section IIA appears to violate this ethical provision.