Ethics and the Law: Know When to Hold ’Em and When to Fold ’Em - By Robert Pelton

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Sunday, April 12th, 2015

Several lawyers have contacted the hotline for advice on ending their relationship with a client. A simple motion to withdraw may not be as simple as some people think. After talking with several smart lawyers I have found the following scenarios:

1.   Lawyer takes case knowing there will be problems, but takes the case anyways because he needs the money;
2.   Lawyer takes the case because it is a high-profile client and believes it will enhance his reputation as a top, smart lawyer;
3.   Lawyer takes case because the family member or former client puts pressure on him telling him, “You are the only one who can help,” and “You are the best lawyer around.” Yes, lawyers like to have their ego stroked.
4.   Lawyer takes case because client has had problems with other lawyers and he wants to prove he is the one who can handle it.

Be wary on scenario #4. When a client comes to you after having several other lawyers, it is like getting involved with a man or woman who has been married five times. You may think in your mind, this is the one, and he or she is just misunderstood, but you have not heard Mickey Gilley’s song “Don’t the Girls All Get Prettier at Closing Time.” Like a friend of mine, a San Antonio lawyer, who wakes up with strange women in his bed and asks, “Who are you?” She says, “ I don’t know who I am this morning, but last night I was the YELLOW ROSE of Texas.”

The Texas Disciplinary Rules of Professional Conduct provide limits on when an attorney can terminate representation of a client:

Mandatory Termination

  • When other disciplinary rules would be violated. Tex. Disciplinary R. Prof’l Conduct 1.15(a) (2005), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (State Bar Rules art. X, § 9).
  • When the attorney has become materially (physically or mentally) impaired. Id.
  • If the lawyer is discharged by the client. Id.
  • If ordered to by a tribunal. Tex. Disciplinary R. Prof’l Conduct x.xx 1.15(c).

Termination Prohibited Unless:

1)   withdrawal can be accomplished without material adverse effect on the interests of the client;
2)   the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes may be criminal or fraudulent;
3)   the client has used the lawyer’s services to perpetrate a crime or fraud;
4)   a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement;
5)   the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services, including an obligation to pay the lawyer’s fee as agreed, and has been given rea­sonable warning that the lawyer will withdraw unless the obligation is fulfilled;
6)   the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client;
7)   other good cause for withdrawal exists (Tex. Disciplinary R. Prof’l Conduct 1.15(b));
8)   In civil cases, good cause is shown and a written motion filed. Tex. R. Civ. P. 10.

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 payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law if such retention will not prejudice the client in the subject matter of the representation. Tex. Disciplinary R. Prof’l Conduct 1.15(d).

The Harris County criminal district courts have a local rule on withdrawal of counsel:

Rule 6.15. Withdrawal or Substitution of Counsel

        If, prior to the disposition of a case, an appointed or retained attorney wishes to withdraw pursuant to DR 2-110, Code of Professional Responsibility, Vernon’s Ann. Civ. Stat., Title 14 App., Art. 12, Sec. 8, or for any other reason, the attorney must file a written motion to that effect with the Court. Such motion must be filed at least 15 days prior to a trial setting. If an attorney is retained to replace existing counsel, the attorney must file a motion to substitute counsel, naming both himself and the attorney to be relieved.

        A retained attorney of record at the time of trial will be considered the attorney of record in the event of an appeal unless the attorney files a written motion to withdraw when notice of appeal is given.

Do not forget that when you and your client part ways be­fore the end of a matter, you should make sure that the client is informed of any future settings. It is also not a good idea to withhold a client’s file if he does not pay you, pursuant to Disciplinary Rule 1.15(d). Texas Ethics Opinion 411 states:

        Although this ethical limitation removes much of the “clout” of a retaining file —since the greater the client’s need for his file, the greater the leverage the attorney retaining it will possess—an attorney who has once been retained to represent a client’s rights may not later precipitate actual harm to those rights merely to collect a fee.

In at least one case, a Texas attorney has been disciplined for retaining client papers. See Smith v. State, 490 S.W.2d 902 (Tex. Civ. App.—Corpus Christi 1973), on appeal after remand, 523 S.W.2d 1(Tex. Civ. App.—Corpus Christi 1975, writ ref’d n.r.e.).1

In the next issue, I will have examples from the Ethics Committee of their personal experiences about knowing when to hold ’em and knowing when to fold ’em.

The motion should state the following:

Ethics & The Law April 2015-1

1. It is important to remember that the client file does not include any discovery obtained under the Michael Morton Act, Tex. Code Crim. Proc. Ann. Art. 39.14 (West 2014). A defense attorney may have copies of the items provided for in the MMA, but by the MMA’s express terms, the defendant may only view redacted copies and may not keep copies. Id.