If Client Won’t Listen, Withdraw or Write it Down

Lawyers get paid for their professional judgment and advice, but there’s no guarantee clients will heed it.

A lawyer who disagrees with a client should consider whether he should or must withdraw from the representation, a recent opinion from the Philadelphia bar’s ethics committee said.

But when the disagreement is about strategy or settlement terms, the lawyer might be required to do what the client wants, the opinion said. A lawyer in that situation would be wise to document the disagreement in writing, both to the client and in the client’s file.

Withdrawal Analysis

When a disagreement arises with a client, the lawyer first should decide if withdrawal is an option, the committee said.

Pennsylvania Rule of Professional Conduct 1.16 (a) says a lawyer must withdraw if he’s fired by the client or if he’ll violate other ethics rules or the law. The committee said the lawyer is required to withdraw if the client asks the lawyer to violate:

  • Rule 3.1 (no frivolous claims or arguments);
  • Rule 3.2 (must expeditiously pursue litigation);
  • Rule 3.3 (candor to tribunal);
  • Rule 3.4 (fairness to opponents);
  • Rule 4.1 (make only truthful statements); and
  • Rule 4.4 (respecting third party’s rights).

And the committee said Rule 1.2(d) separately provides that a lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.”

The circumstances under which a lawyer may withdraw are less straightforward. Those include if:

  • there won’t be any “material adverse effect” on the client;
  • “the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent”;
  • the lawyer was used to commit a crime or fraud;
  • the lawyer believes the client’s conduct is repugnant or there is a “fundamental disagreement”;
  • the client doesn’t comply with an obligation, such as paying the lawyer’s fees;
  • there will be an “unreasonable financial burden on the lawyer” or representation is “rendered unreasonably difficult”; or
  • for other good cause.

If a lawyer wants to withdraw, the committee advised that he explain the reason in writing to the client.

Gutting it Out

Lawyers must be thorough, keep clients informed, and give clients their candid, professional judgment, the committee said. It cited to Rules 2.1 (lawyer as advisor) and 1.4 (communication).

But there are limited options for a lawyer whose client simply disagrees with his advice and withdrawal isn’t a possibility, the committee said.

Ultimately, if the lawyer continues to represent the client, the lawyer must comply with the client’s wishes under Rule 1.2(a), especially where settlement is concerned. But, in that situation, the “best practice” is for the lawyer to memorialize his advice and the client’s disagreement, both in the file and directly to the client. “[A]ny negative outcomes and controversial recommendations” should be included in those communications, the committee said.

It also advised that all settlement demands should be in writing.

The opinion is Phila. Bar Ass’n Prof’l Guidance Comm., Op. 2018-2 , 7/18.

To contact the reporter on this story: Mindy Rattan in Washington at mrattan@bloomberglaw.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bloomberglaw.com