Bar Counsel: 20/20: Withdrawing From a Representation? Mum’s the Word

From Washington Lawyer, June 2012
By Dolores Dorsainvil

A client stands accused of a violent crime that has caught significant media attention. The case, a sensational one, has the lawyer at odds with his client, and, to make matters worse, it has provided for a difficult working relationship. The lawyer contemplates terminating the attorney–client relationship but is not certain how to do so.[1]

Then it hits him like a bolt of lightning: The lawyer will convene a press conference and announce to several media outlets in attendance that he is parting ways with the accused. At the press conference, the lawyer goes further and ends up revealing some of the frustrating aspects of the representation. The lawyer discloses that he had difficulty communicating with his client, and, to illustrate that point, he shares the fact that the client has not returned his telephone calls or e–mail and text messages in several days. The lawyer also states that although he believes in his client’s innocence, he is concerned about the client because he believes the client may suffer from mental health issues.

Harmless enough, right? Wrong.

Here is another scenario. A lawyer realizes that she has been retained by what some may refer to as “the client from hell.” In addition to being generally disagreeable, the client will not follow any of the lawyer’s advice or counsel and has taken to a course of action all on her own. To top off this frustrating relationship, the lawyer’s client has failed to pay the lawyer for a great amount of time spent providing legal services, including attendance at several court hearings. The client has not even acknowledged any of the past invoices billed on the legal matter and has lied to the lawyer about paying the bill. The lawyer decides she will terminate the relationship and withdraw from the matter.

The lawyer files a motion to withdraw with the court, and in it, she explains, in great detail, her reasons for the withdrawal. The lawyer does this because she assumes that there is a greater likelihood that the court will grant the motion if the court understands the difficult circumstances the lawyer faced representing “the client from hell.”

This is a correct assumption, right? Wrong.

A client may terminate the attorney–client relationship at any time for any reason. However, a lawyer may terminate the representation only for the reasons set forth in Rule 1.16(a) and 1.16(b) (Declining or Terminating Representation) of the D.C. Rules of Professional Conduct. When deciding whether a lawyer can safely withdraw from a representation, or to better understand the instances when a withdrawal from a representation is a mandatory duty placed on the lawyer or whether it is permissive, a lawyer should read this rule as it delineates the proper procedure for withdrawing from a representation. It is imperative for a lawyer who is contemplating ending a relationship—even an antagonistic one—to remember to take care to protect the client’s interests. If a lawyer chooses to end the relationship by way of either course of action described above, he or she has engaged in ethical misconduct. D.C. Rule 1.16(b) states, in pertinent part, “…[a] lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client….” The rules prohibit a lawyer from painting a client in a negative light (even if the information is technically true) and/or revealing the intricacies of the attorney–client relationship as this could cause a material adverse effect on the client’s interests. Further, this conduct may also violate Rule 1.6 (Confidentiality of Information), which prohibits a lawyer from using a client’s confidence or secret to the client’s disadvantage.[2] So in the example of calling for a press conference, the lawyer’s conduct is fraught with peril in that, by doing so, negative attention could be brought to the client’s legal matter, which may cause legal harm to the client.

Filing a motion with a court that reveals a client’s confidence or secret can result in what is referred to as a “noisy withdrawal.” Comment [3] to Rule 1.16 provides guidance to practitioners who may find themselves in an unenviable situation where they may have to file a motion to withdraw from a matter. A lawyer may cite “irreconcilable differences” between the lawyer and the client as the basis for the need to terminate the relationship. If the court orders or other law requires further explanation for the withdrawal, a lawyer should think about ways to ensure that he or she keeps the client’s confidentiality as well as comply with the ethical rules by either filing a motion under seal or requesting an in camera review.[3]

A “noisy withdrawal” occurred in the matter of In Re Gonzalez,[4] where a lawyer retained to represent defendants in a civil matter in Virginia filed a motion with the court, with a copy sent to opposing counsel, revealing embarrassing and detrimental information. Specifically, Gonzalez represented to the court that his clients were not paying their legal bills, had failed to cooperate with him in preparing for the trial, and that the clients made several misrepresentations to him. To make matters worse, Gonzalez attached copies of seven letters that he wrote to his clients berating them for noncooperation and misrepresenting facts to him. Gonzalez argued that he was obliged to make the disclosures in his motion because the Virginia court would have denied the motion if it did not contain a reasonable detailed justification for the withdrawal.[5] In its decision, the District of Columbia Court of Appeals rejected Gonzalez’s argument, and, not finding an exception to the disclosure, held that Gonzalez could have provided the Virginia court with the damaging information in such a way that would have maintained the clients’ confidentiality and minimized the possible adverse effects to the clients. As a result of his misconduct, Gonzalez was informally admonished.   

Determining whether or not to terminate a representation can be a tough decision. In those matters, a lawyer should always consult the rules because a lawyer’s duty to preserve the client’s interests continues even when the representation does not.

Dolores Dorsainvil is a senior staff attorney with the Office of Bar Counsel.

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Notes

[1] “Mum” is a Middle English word meaning “silent.”

[2] Rule 1.6(a) states, in pertinent part, “…[a] lawyer shall not knowingly: (1) reveal a confidence or secret of the lawyer’s client; (2) use a confidence or secret of the lawyer’s client to the disadvantage of the client; (3) use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.”
Rule 1.6(b) defines the terms and states that, “Confidence” refers to information protected by the attorney–client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.”

[3] When a matter is pending before a court, a lawyer must get the permission of the court as a prerequisite to withdraw. See Rule 1.16(c).

[4] 773 A.2d 1026 (D.C. 2001).

[5] Id. at 1031.

Disciplinary Actions Taken by the Board on Professional Responsibility

Original Matters

In re Claudette M. Winstead II. Bar No. 447368. March 14, 2012. The Board on Professional Responsibility directed Bar Counsel to issue an informal admonition to Winstead. Specifically, the misconduct was based on letters and numerous other documents addressed from Winstead or her assistant to three clients and several third parties indicating that she was authorized to practice law in Maryland when she was not. Additional misconduct was based on statements in three retainer agreements indicating that the disciplinary rules in Maryland, Pennsylvania, and Virginia allowed Winstead to provide counsel with regard to “transactional” matters despite her lack of a law license in those jurisdictions. Rules 7.1(a) and 7.5(a).

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters

In re G. Paul Howes. Bar No. 434709. March 8, 2012. The D.C. Court of Appeals disbarred Howes. Howes engaged in multiple rule violations while serving as an assistant United States Attorney in the District of Columbia. The misconduct arose out of Howes’ investigation and prosecution of very serious, high–profile drug/homicide gang cases in the Superior Court of the District of Columbia, and in the United States District Court for the District of Columbia, as well as his investigation of an unrelated sexual assault. The misconduct occurred between 1993 and 1995 and entailed, inter alia, Howes’ provision of a large volume of witness vouchers to persons not entitled to them, and a subsequent failure to disclose these voucher payments to defense counsel or the courts. Howes violated the following rules: 1) Rule 3.3(a), knowingly making a false statement of material fact or law to a tribunal (Counts I, II, and III); 2) Rule 3.4(c), knowingly disobeying an obligation under the rules of a tribunal (Counts I, II, and III); 3) Rule 3.8(e), as prosecutor in a criminal case, intentionally failing to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, evidence of information that Respondent knew or reasonably should have known tended to negate the guilt of the accused) (Counts I and II only); 4) Rule 8.4(a), violating or attempting to violate the Rules of Professional Conduct, knowingly assisting or inducing another to do so, and/or doing so through the acts of another (Counts I, II, and III); 5) Rule 8.4(b), committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness (Counts I, II, and III); 6) Rule 8.4(c), engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation (Counts I, II, and III); 7) Rule 8.4(d), engaging in conduct that seriously interferes with the administration of justice (Counts I, II, and III).

In re James M. Schoenecker. Bar No. 490488. March 8, 2012. The D.C. Court of Appeals disbarred Schoenecker. Schoenecker was found guilty in Circuit Court Branch 4 for Walworth County, Wisconsin, of misappropriation of identification information to obtain money in violation of Wisconsin Statutes § 943.201(2)(a), a crime involving moral turpitude per se, for which disbarment is mandatory under D.C. Code § 11-2503(a)(2001).  

Interim Suspensions Issued by the District of Columbia Court of Appeals

In re Barbara L. Brackett. Bar No. 445457. March 19, 2012. Brackett was suspended on an interim basis based upon discipline imposed in Virginia.

In re Daryl D. Jones. Bar No. 443302. March 19, 2012. Jones was suspended on an interim basis based upon discipline imposed in Maryland.

In re Harvey M. Nusbaum. Bar No. 496870. March 19, 2012. Nusbaum was suspended on an interim basis based upon discipline imposed in Maryland.

In re Earle A. Partington. Bar No. 87700. March 27, 2012. Partington was suspended on an interim basis based upon discipline imposed in Hawaii.

In re John K. Reiff. Bar No. 454800. March 19, 2012. Reiff was suspended on an interim basis based upon discipline imposed in Maryland.

In re Robert M. Seto. Bar No. 259374. March 20, 2012. The Honorable Robert M. Seto was suspended on an interim basis based upon discipline imposed in Hawaii.

Informal Admonitions Issued by the Office of Bar Counsel

In re Stephen D. Annand. Bar No. 480532. March 5, 2012. Bar Counsel issued Annand an informal admonition. While retained to represent the parents’ interests as coadministrators of the estate of their deceased son, Annand failed to keep the clients reasonably informed about the status of the matter; failed to explain the matter to the extent reasonably necessary to permit the clients to make informed decisions about the representation; and, in connection with the termination of the representation, failed to take timely steps to the extent reasonably practicable to protect the clients’ interests. Rules 1.4(a), 1.4(b), and 1.16(d).

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The Office of Disciplinary Counsel compiled the foregoing summaries of disciplinary actions. Informal Admonitions issued by Disciplinary Counsel and Reports and Recommendations issued by the Board on Professional Responsibility are posted at www.dcattorneydiscipline.org. Most board recommendations as to discipline are not final until considered by the court. Court opinions are printed in the Atlantic Reporter and also are available online for decisions issued since August 1998. To obtain a copy of a recent slip opinion, visit www.dccourts.gov/internet/opinionlocator.jsf.