The decision to end a representation entails a number of considerations, including both practical and ethical concerns. Depending on the nature and duration of the relationship, it can be difficult for an attorney to make the decision to part ways with a client. But in some circumstances, the decision to terminate the relationship could be in both parties' best interests, especially if the client has become nonresponsive or has otherwise displayed problematic tendencies. At that point the risk of a legal malpractice claim or bar complaint from a disgruntled client can outweigh an attorney's best efforts to continue the representation.

While an attorney may desire to end the relationship and move on as soon as possible, it is important to remember that ethical rules govern this process, in part to ensure that clients' interests remain protected. Further, what is expected of attorneys withdrawing from a representation will vary. A generic but important distinction is for litigators versus transactional attorneys. Generally, litigators are required to comply with specific court rules governing withdrawal, whereas transactional attorneys may only be required to receive the client's consent or otherwise provide them with adequate notice via written or oral correspondence.

To properly observe the ethical requirements and ensure they do not expose themselves to complaints after the relationship's end, many attorneys will consider the following steps when making the decision to withdraw.

Preserving the Client's Interests

In most cases, the primary consideration in ethically terminating a representation will be ensuring the client's interests are not adversely impacted by the withdrawal. Indeed, Rule 1.15(b)(1) of the Texas Disciplinary Rules of Professional Conduct provides that, “a lawyer shall not withdraw from representing a client unless . . . withdrawal can be accomplished without material adverse effects on the interests of the client.” There are other circumstances identified in the Rules under which an attorney may—or, sometimes, must—withdraw, but many terminations focus on whether ending the representation will adversely impact the client.

Every representation is different and accordingly every withdrawal will impact a client differently. Nevertheless, some key considerations include how complex the subject matter of the representation is and whether the client can find replacement counsel, whether co-counsel is involved in the matter, and any impending deadlines.

Other reasons that require withdrawing from a representation include when a lawyer is a witness per Rule 3.08, when the lawyer's physical, mental, or psychological condition materially impairs their fitness to represent the client, and if the lawyer is discharged by the client for any reason. Rule 1.15(a). But no matter the reasons, if a tribunal orders a lawyer to continue the representation, he or she must do so. Rule 1.15(c).

Once it is time to withdraw, most attorneys find that written correspondence is the most effective means for conveying the seriousness of the matter to the client and protecting their own interests. Thus many attorneys in this situation will send the client a letter that contains upcoming deadlines and sets forth a time for the client to respond or otherwise acquiesce to the withdrawal request. Then, if the client later disputes that the attorney truly terminated the relationship, the lawyer can use the writing as evidence regarding the circumstances of the withdrawal.

While a letter may be sufficient in most circumstances, litigation attorneys generally are required to adhere to more strict standards because of court oversight.

Special Considerations for Litigation Attorneys

When a client agrees to the attorney's withdrawal from their active litigation, an attorney typically must then seek to formally withdraw with court approval. The precise requirements of this step will vary depending on the court in which the matter is pending.

An attorney will often be required to file a notice or motion to withdraw, copying their client and all other parties. Then, if the client objects to the withdrawal, the court may set a hearing to gather and review evidence. At such a hearing, most attorneys will take care not to divulge privileged or confidential information unless the court permits them to do so after the client provides informed consent.

To avoid this public display, many law firms will spell out the terms for any future termination in their initial engagement letter. Another way to address withdrawal is to help the client find substitute counsel, who can file a notice of substitution and bypass the difficulties of leaving a client unrepresented mid-litigation.

Because each court is different, attorneys in this situation will take steps to make sure they do not run afoul of the rules. For example, the United States District Court for both the Eastern and Southern Districts of Texas require only a motion and order “upon conditions imposed by the court” to effectuate the change of counsel.

Observing the Rules Post-Termination

Even after a relationship is terminated, an attorney is still required to “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 payments of fee that has not been earned.” Rule 1.15(d).

Attorneys may also find it helpful to keep a record of when every relationship ends, in case a former client brings a malpractice action. Having a termination date documented may help support a statute of limitation defense.

Being cognizant of the ethical rules and observing them will help attorneys increase the likelihood that the matter's end is the end, minimizing the likelihood of related problems down the road.

Shari L. Klevens is a partner at Dentons and serves on the firm's US Board of Directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons' global insurance sector team. Alanna Clair is a partner at Dentons and focuses on professional liability defense. Shari and Alanna are co-authors of “The Lawyer's Handbook: Ethics Compliance and Claim Avoidance.”