Md. R. Att'y 19-301.16
Md. R. Att'y 19-301.16
COMMENT
[1] Section (a) imposes an obligation on an attorney to inquire into and assess the facts and circumstances of the representation before accepting it. The obligation imposed by section (a) continues throughout the representation. A change in the facts and circumstances relating to the representation may trigger an attorney's need to make further inquiry and assessment. For example, a client traditionally uses an attorney to acquire local real estate through the use of domestic limited liability companies, with financing from a local bank. The same client then asks the attorney to create a multi-tier corporate structure, formed in another state to acquire property in a third jurisdiction, and requests to route the transaction's funding through the attorney's trust account. Another example is when, during the course of a representation, a new party is named or a new entity becomes involved. An attorney should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion. Ordinarily, a representation in a matter is completed when the agreed-upon assistance has been concluded. See Rules 19-301.2(c) (1.2) and 19-306.5 (6.5). See also Rule 19-301.3 (1.3), Comment [4].
Mandatory Withdrawal--[2] An attorney ordinarily must decline or withdraw from representation if the client demands that the attorney engage in conduct that is illegal or violates the Maryland Attorneys' Rules of Professional Conduct or other law. The attorney is not obligated to decline or withdraw simply because the client suggests such a course of conduct; a client may make such a suggestion in the hope that an attorney will not be constrained by a professional obligation. Under paragraph (a)(4), the attorney's inquiry into and assessment of the facts and circumstances will be informed by the risk that the client or prospective client seeks to use or persists in using the attorney's services to commit or further a crime or fraud. This analysis means that the required level of an attorney's inquiry and assessment will vary for each client or prospective client, depending on the nature of the risk posed by each situation. Factors to be considered in determining the level of risk may include: (i) the identity of the client, such as whether the client is a natural person or an entity and, if an entity, the beneficial owners of that entity; (ii) the attorney's experience and familiarity with the client; (iii) the nature of the requested legal services; (iv) the relevant jurisdictions involved in the representation (for example, whether a jurisdiction is considered at high risk for money laundering or terrorist financing); and (v) the identities of those depositing into or receiving funds from the attorney's client trust account, or any other accounts in which client funds are held.
[3] When an attorney has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 19-306.2 (6.2). Similarly, court approval or notice to the court is often required by applicable law before an attorney withdraws from pending litigation. Difficulty may be encountered if withdrawal is based on the client's demand that the attorney engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the attorney may be bound to keep confidential the facts that would constitute such an explanation. The attorney's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. Attorneys should be mindful of their obligation to both clients and the court under Rules 19-301.6 (1.6) and 19-303.3 (3.3).
Discharge--[4] A client has a right to discharge an attorney at any time, with or without cause, subject to liability for payment for the attorney's services. Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances.
[5] Whether a client can discharge an appointed attorney 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 attorney is unjustified, thus requiring self-representation by the client.
[6] If the client has severely diminished capacity, the client may lack the legal capacity to discharge the attorney, and in any event the discharge may be seriously adverse to the client's interests. The attorney should make special effort to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 19-301.14 (1.14).
Optional Withdrawal--[7] An attorney may withdraw from representation in some circumstances. The attorney 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 attorney reasonably believes is criminal or fraudulent, for an attorney is not required to be associated with such conduct even if the attorney does not further it. Withdrawal is also permitted if the attorney's services were misused in the past even if that would materially prejudice the client. The attorney may also withdraw where the client insists on taking action or inaction that the attorney considers repugnant or with which the attorney has a fundamental disagreement.
[8] An attorney 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--[9] Even if the attorney has been unfairly discharged by the client, an attorney must take all reasonable steps to mitigate the consequences to the client. The attorney may retain papers as security for a fee only to the extent permitted by law, subject to the limitations in section (d) of this Rule. See Rule 19-301.15 (1.15).
Model Rules Comparison: Rule 19-301.16 (1.16) is substantially similar to the language of the amendments to the ABA Model Rules of Professional Conduct approved as Resolution 23A100 in August of 2023, with the exception of the addition of "or inaction to Rule 19-301.16(b)(4) (1.16) and Comment [7], the omission of the last sentence of Comment [2], and the addition of "subject to the limitations in section (d) of this Rule to Comment [9].