Rule 1.16.Declining or Terminating Representation
(a)Except as stated in paragraph (c), a lawyer shall not
represent a client or, where representation has commenced, shall
withdraw from the representation of a client if:
(1)the representation will result in violation of the rules of
professional conduct or other law;
(2)the lawyer's physical or mental condition materially impairs
the lawyer's ability to represent the client; or
(3)the lawyer is discharged.
(b)A lawyer may not request permission to withdraw in matters
pending before a tribunal and may not withdraw in other matters unless such
request or such withdrawal is because:
(1)the client:
(A)insists upon presenting a claim or defense that is not
warranted under existing law and cannot be supported by good faith
argument for an extension, modification, or reversal of existing law.
(B)personally seeks to pursue an illegal course of conduct.
(C)insists that the lawyer pursue a course of conduct that is
illegal or that is prohibited by these rules.
(D)by other conduct renders it unreasonably difficult for the
lawyer to carry out the lawyer's employment effectively.
(E)insists, in a matter not pending before a tribunal, that the
lawyer engage in conduct that is contrary to the judgment and advice of
the lawyer but not prohibited by these rules; or
(F)deliberately disregards an agreement or obligation to the
lawyer as to expenses or fees; or
(2)the lawyer's inability to work with co-counsel indicates
that the best interest of the client likely will be served by
withdrawal; or
(3)the lawyer's client knowingly and freely assents to
termination of the lawyer's employment; or
(4)the lawyer believes in good faith in a proceeding pending
before a tribunal that the tribunal will find the existence of other
good cause for withdrawal.
(c)When ordered to do so by a tribunal, a lawyer shall continue
representation notwithstanding good cause for terminating the
representation.
(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 employment of other counsel, surrendering papers and property to
which the client is entitled and refunding any advance payment of fee
that has not been earned. The lawyer may retain papers relating to the
client to the extent permitted by law.
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ANNOTATIONSCOMMENT
A lawyer should not accept representation in a matter unless it
can be performed competently, promptly, without improper conflict of
interest and to completion.
Mandatory Withdrawal
A lawyer ordinarily must decline or withdraw from representation
if the client demands that the lawyer engage in conduct that is illegal
or violates the Rules of Professional Conduct or other law. The lawyer
is not obliged to decline or withdraw simply because the client suggests
such course of conduct; a client may make such a suggestion in the hope that
a lawyer will not be constrained by a professional obligation.
When a lawyer has been appointed to represent a client, withdrawal
ordinarily requires approval of the appointing authority. See also Rule
6.2. Difficulty may be encountered if withdrawal is based on the
client's demand that the lawyer engage in unprofessional conduct. The
court may wish an explanation for the withdrawal, while the lawyer may
be bound to keep confidential the facts that would constitute such an
explanation. The lawyer's statement that professional considerations
require termination of the representation ordinarily should be accepted
as sufficient.
Discharge
A client has a right to discharge a lawyer at any time, with or
without cause, subject to liability for payment for the lawyer's
services. Whether future dispute about the withdrawal may be
anticipated, it may be advisable to prepare a written statement reciting
the circumstances.
Whether a client can discharge appointed counsel may depend on
applicable law. A client seeking to do so should be given a full
explanation of the consequences. These consequences may include a
decision by the appointing authority that appointment of successor
counsel is unjustified, thus requiring the client to represent himself.
If the client is mentally incompetent, the client may lack the
legal capacity to discharge the lawyer, and in any event the discharge
may be seriously adverse to the client's interests. The lawyer should
make special effort to help the client consider the consequences and, in
an extreme case, may initiate proceedings for a conservatorship or
similar protection of the client. See Rule 1.14.
Optional Withdrawal
A lawyer may withdraw from representation in some circumstances.
The lawyer has the option to withdraw if it can be accomplished without
material adverse effect on the client's interests. Withdrawal is also
justified if the client persists in a course of action that the lawyer
reasonably believes is criminal or fraudulent, for a lawyer is not
required to be associated with such conduct even if the lawyer does not
further it. Withdrawal is also permitted if the lawyer's services were
misused in the past even if that would materially prejudice the client.
The lawyer also may withdraw where the client insists on a repugnant or
imprudent objective.
A lawyer may withdraw if the client refuses to abide by the terms
of an agreement relating to the representation, such as an agreement
concerning fees or court costs or an agreement limiting the objectives
of the representation.
Assisting the Client upon Withdrawal
Even if the lawyer has been unfairly discharged by the client, a
lawyer must take all reasonable steps to mitigate the consequences to
the client. The lawyer may retain papers as security for a fee only to
the extent permitted by law.
Whether or not a lawyer for an organization may under certain unusual
circumstances have a legal obligation to the organization after withdrawal or
being discharged by the organization's highest authority is beyond the scope
of these Rules.
COMMITTEE COMMENT
Rule 1.16(a) is similar to Code provision DR 1-109. Rule 1.16(b)
is generally similar to Code provision DR 2-110(C), and has been revised
to restrict counsel's flexibility in permissive withdrawals. The
revisions are patterned after DR 2-110. The concept of permitting
withdrawal where "other good cause for withdrawal exists," found in the
ABA Model Rules has been deleted. The Committee believes that the
public is best served when a specific basis for withdrawal is required.
Rule 1.16(c) and (d) are substantially similar to Code provisions DR 2
110(A)(1), (2) and (3).
ANNOTATION
Annotator's note.
Rule 1.16 is similar to
DR 2-103, DR 2-104, and DR 2-110 as they
existed prior to the 1992 repeal and reenactment of the Code of
Professional Responsibility.
Relevant cases construing
DR 2-104 have
been included in the annotations to this rule.
Cases construing DR 2-103 have been included under Rule 1.5
and cases construing DR 2-110 have been included under Rule 1.2.
Attorney discharged without cause may not recover damages under a
non-contingency contract for services not rendered before the discharge.
It is
important to balance the attorney-client relationship and the attorney's
right
to receive fair and adequate compensation. interests. Olsen and Brown v.
City of Englewood, 889 P.2d 673 (Colo. 1995).
The decision as to whether defense counsel should be permitted to
withdraw lies within the sound discretion of the court. If the trial court
has a reasonable basis for concluding that the attorney-client relationship
has
not deteriorated to the point at which counsel is unable to give effective
assistance in the presentation of a defense, then the court is justified in
refusing to appoint new counsel. People v. Rocha, 872 P.2d 1285 (Colo. App.
1993).
Disagreement concerning the refusal of defense counsel to call certain
witnesses is not sufficient per se to require the trial court to grant a
motion to withdraw. People v. Rocha, 872 P.2d 1285 (Colo. App. 1993).
Among the factors a trial court must consider in determining whether
withdrawal is warranted is the possibility that any new counsel will be
confronted with the same irreconcilable conflict. People v. Rocha, 872
P.2d 1285 (Colo. App. 1993).
Public censure instead of private censure was appropriate where
attorney failed to
respond to discovery requests and motions for summary judgment and the
findings
of the board did not support the applicability of ABA Standard 9.32(i) as a
mitigating factor since there was no medical evidence that attorney was
affected by chemical dependency or that alcohol contributed to or caused the
misconduct. People v. Brady, 923 P.2d 887 (Colo. 1996).
Attorney's restitution agreement was neither an aggravating nor mitigating
factor
since the attorney did not propose or attempt any form of restitution until
after a request for investigation had been filed with the office of
disciplinary counsel. People v. Brady, 923 P.2d 887 (Colo. 1996).
Attorney's argument that public discipline is not appropriate because it
would stigmatize a recovering alcoholic was rejected since overriding
concern in discipline proceedings is to protect the public through the
enforcement of professional standards of conduct. People v. Brady, 923 P.2d
887 (Colo. 1996).
Attorney's professional misconduct involving the improper collection of
attorney's fees in six instances, and the failure to withdraw upon client's
request in one instance justified 45-day suspension. People v.
Peters, 849 P.2d 51 (Colo. 1993).
An attorney is entitled only to compensation for the
reasonable value of the services rendered if the attorney is
employed under a fixed fee contract to render specific legal
services and is discharged by the client without cause. The client
was entitled to discharge the attorneys without cause and without
incurring any further liability, other than payment for services
rendered on a quantum meruit theory. Olsen and Brown v. City of
Englewood, 867 P.2d 96 (Colo. App. 1993).
Any contractual provision that constrains a client from
exercising the right freely to discharge his or her attorney is
unenforceable. A client has an unfettered right to discharge freely
its attorney without incurring liability under ordinary breach of
contract principles. Olsen and Brown v. City of Englewood, 867 P.2d
96 (Colo. App. 1993).
Disbarment appropriate where attorney accepted fees from a number of
clients prior to terminating her legal practice, failed to inform her clients
of such termination, failed to refund clients' retainer fees, failed to place
clients' funds in separate account, and gave clients' files to other lawyers
without clients' consent. People v. Tucker, 904 P.2d 1321 (Colo. 1995).
Previously disbarred attorney who violated this rule would be forced
to pay
restitution to clients as a condition of readmission. People v. Vigil, 945
P.2d 1385 (Colo.
1997).
Conduct violating this rule, in conjunction with other disciplinary
rules,
sufficient to justify disbarment where the attorney continued to practice
law while
on suspension, repeatedly neglecting his clients and failing to take
reasonable steps to
protect clients' interests. People v. Fager, 938 P.2d 138 (Colo. 1997).
Suspension for one year and one day appropriate where attorney violated
paragraph (d) by not returning or accounting for client funds held for
emergencies
after the clients fired the attorney and for negligently converting other
client funds to the
attorney's own use. People v. Johnson, 944 P.2d 524 (Colo. 1997).
Suspension for three years, rather than disbarment, was appropriate where
violation of this rule and others caused serious harm to attorney's clients, but mitigating
factors were present, including no previous discipline in 14 years of practice, personal and
emotional problems, and cooperation and demonstrated remorse in proceedings. People v.
Henderson, 967 P.2d 1038 (Colo. 1998).
Conduct violating this rule in conjunction with other disciplinary
rules is
sufficient to justify public censure. People v. Williams, 936 P.2d 1289
(Colo. 1997); People v. Barr, 957 P.2d 1379 (Colo. 1998).
Conduct violating this rule in conjunction with other
disciplinary rules is sufficient to justify suspension.
People v. Crews, 901 P.2d 472 (Colo. 1995);
People v. Kuntz, 908 P.2d 1110 (Colo. 1996);
People v. Johnson, 946 P.2d 469 (Colo. 1997);
People v. Rishel, 956 P.2d 542 (Colo. 1998);
In re Corbin, 973 P.2d 1273 (Colo. 1999).
Conduct violating this rule in conjunction with other
disciplinary rules is sufficient to justify disbarment.
People v. Damkar, 908 P.2d 1113 (Colo. 1996);
People v. Jamrozek, 921 P.2d 725 (Colo. 1996);
People v. Steinman, 930 P.2d 596 (Colo. 1997);
People v. Wallace, 936 P.2d 1282 (Colo. 1997);
People v. Mannix, 936 P.2d 1285 (Colo. 1997);
People v. Madigan, 938 P.2d 1162 (Colo. 1997);
People v. Holmes, 951 P.2d 477 (Colo. 1998);
People v. Holmes, 955 P.2d 1012 (Colo. 1998);
People v. Valley, 960 P.2d 141 (Colo. 1998);
People v. Skaalerud, 963 P.2d 341 (Colo. 1998).
Cases Decided Under Former DR 2-104.
Law reviews.
For formal opinion of the Colorado Bar Association Ethics Committee on
Lawyer Advertising, Solicitation and Publicity, see 19 Colo. Law. 25 (1990).
For formal opinion of the Colorado Bar Association Ethics Committee on
Collaboration with Non-Lawyers in the Preparation and Marketing of Estate
Planning Documents, see 19 Colo. Law. 1793 (1990).
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