N.M. R. Prof'l. Cond. 16-116
N.M. R. Prof'l. Cond. 16-116
Committee commentary. -
[1] A lawyer 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 Paragraph C of Rule 16-102 NMRA, and Rule 16-605 NMRA of the Rules of Professional Conduct; see also Committee Commentary to Rule 16-103 NMRA of the Rules of Professional Conduct.
Mandatory Withdrawal
[2] 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 a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be constrained by a professional obligation.
[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 16-602 NMRA of the Rules of Professional Conduct. Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation. Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may request 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. Lawyers should be mindful of their obligations both to clients and to the court under Rules 16-106 and 16-303 NMRA of the Rules of Professional Conduct.
Discharge
[4] 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. 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 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 self-representation by the client.
[6] If the client has severely diminished capacity, 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 may take reasonably necessary protective action as provided in Rule 16-114 NMRA of the Rules of Professional Conduct.
Optional Withdrawal
[7] 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 may also withdraw where the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.
[8] 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
[9] 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. See Rule 16-115 NMRA of the Rules of Professional Conduct.
[Adopted by Supreme Court Order No. 08-8300-029, effective November 3, 2008.]
.ANNOTATIONS The 2008 amendment, approved by Supreme Court Order No. 08-8300-029, effective November 3, 2008, in Subparagraph (4) of Paragraph B, changed "pursuing an objective" to "taking action" and changed "imprudent" to "with which the lawyer has a fundamental disagreement" and added the first sentence in Paragraph C. Compiler's notes. - The old ABA Comment was replaced by the 2008 committee commentary. Attorney may not recover unearned attorney fees. - A necessary corollary of the client's power to discharge an attorney at any time is the general rule that an attorney may collect fees only for services actually rendered, either under contact or principles of quantum merit and where a contract arising out of the attorney-client employment relationship gives rise to a claim for breach that effectively negates the continued viability of that relationship, the attorney cannot recover fees for unearned services. Guest v. Allstate Ins. Co., 2010 -NMSC-047, 149 N.M. 74, 244 P.3d 342, aff'g in part and rev'g in part, 2009-NMCA-037, 145 N.M. 797, 205 P.3d 844. Where defendant's insured sued defendant and plaintiff; plaintiff was an attorney who performed legal work for defendant, which constituted eighty five percent of plaintiff's practice; initially, defendant refused to defend and indemnify plaintiff against the insured's claims; plaintiff returned all pending cases and requested defendant not to refer work to plaintiff until plaintiff determined whether plaintiff could ethically represent defendant; subsequently, defendant agreed to defend and indemnify; when plaintiff refused to accept the settlement agreement negotiated between defendant and the insured, defendant refused to further fund plaintiff's defense or to pay any potential judgment against plaintiff; and plaintiff sued defendant for breach of contract, claiming as damages future earnings based on what plaintiff would have earned if plaintiff had been able to continue to represent defendant during the pendency of the insured's action, plaintiff could not recover attorney fees for unearned services. Guest v. Allstate Ins. Co., 2010 -NMSC-047, 149 N.M. 74, 244 P.3d 342, aff'g in part and rev'g in part 2009-NMCA-037, 145 N.M. 797, 205 P.3d 844. Protection of client upon withdrawal. - An attorney's apparent failure to complete several cases, to take steps to insure that the interests of her clients were protected upon her withdrawal from their cases, and to promptly refund any unearned portions of fees paid in advance, as well as her lack of cooperation with the disciplinary counsel, constitute conduct violative of the professional rules warranting an indefinite suspension from the practice of law. In re Roth, 1987-NMSC-004, 105 N.M. 255, 731 P.2d 951. If a physical condition is chronic and materially impairs the lawyer's ability to represent a client, the attorney is obligated by Paragraph A to decline to represent a potentially new client, or where representation has commenced, withdraw from representation, and if the lawyer fails to act appropriately, not only will the physical condition not be a defense to the charges or a mitigating factor, it may be part of the proof that ethical violations occurred. In re Martin, 1999-NMSC-022, 127 N.M. 321, 980 P.2d 646. Abandoning office. - An attorney who failed to pursue representation of clients and who abandoned his office and all forms of communication with his clients was subject to a one year suspension. In re Fandey, 1994-NMSC-118, 118 N.M. 590, 884 P.2d 481. Rule violated. In re Martinez, 1988-NMSC-033, 107 N.M. 171, 754 P.2d 842; In re Canevaro, 1997-NMSC-033, 123 N.M. 576, 943 P.2d 1029. Failure to withdraw. - Attorney who took case on a contingency arrangement was sanctioned for fees and costs in the amount of $26,769.80 for failing to settle a case at the request of the client or withdraw as attorney in the case. Vesco v. Snedecker, 236 F. Supp. 2d 1272 (D.N.M. 2002). Failure to file notice of withdrawal. - Where Owen represented the complainants, who were the lessees in a daycare lease dispute; Owen transferred the matter to Jackson who filed suit on behalf of the complainants against the lessor and mortgage holder; because Jackson failed to properly attend to the lawsuit, the complainants fired Jackson and rehired Owen; Jackson failed to withdraw as counsel of record or notify the court and opposing counsel of the withdrawal; Owen failed to file an entry of appearance or substitution of counsel; and Jackson continued to receive notices, correspondence, and pleadings which Jackson delivered to Owen, Jackson failed to take steps to protect the complainants' interests. In re Owen and Jackson, 2013-NMSC-035. Indefinite suspension warranted. - Indefinite suspension was warranted because of an attorney's violation of Paragraph (D) of this rule and other rules, such as Rule 16-101 NMRA, by failing to provide competent representation; Rule 16-103 NMRA, by failing to act with diligence and promptness in representing a client; Rule 16-104 NMRA, by failing to keep his client informed about the status of a matter and failing to respond to requests for information; Rule 16-302 NMRA, by failing to expedite litigation consistent with the interests of his client; and Rule 16-804(C), (D) and (H) NMRA, by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, engaging in conduct prejudicial to the administration of justice, and by engaging in conduct that adversely reflects on his fitness to practice law. In re Lally, 1999-NMSC-003, 126 N.M. 566, 973 P.2d 243. Indefinite suspension was warranted because an attorney violated Paragraph D by failing to timely surrender papers and property to which a client was entitled and by failing to timely refund any advance payment of fee that had not been earned. The attorney also violated Rule 16-101 NMRA, by failing to provide competent representation; Rule 16-102(A) NMRA, by failing to abide by a client's decisions concerning the objectives of the representation; Rule 16-103 NMRA, by failing to act with reasonable diligence and promptness in representing a client; Rule 16-104(A) NMRA, by failing to keep a client reasonably informed about the status of a matter and by failing to promptly comply with reasonable requests for information; Rule 16-804(D) and (H) NMRA, by engaging in conduct that is prejudicial to the administration of justice and conduct that adversely reflects on his fitness to practice law; Rule 16-801(B) NMRA, by failing to respond to lawful requests for information from the office of disciplinary counsel; and Rule 16-803(D) NMRA, by failing to cooperate with disciplinary counsel in the course of the investigation. In re Carlton, 2000-NMSC-001, 128 N.M. 419, 993 P.2d 736. Disbarment was warranted, despite mitigating factors, since the attorney converted client funds; engaged in conduct involving deceit, dishonesty and misrepresentation; failed to hold clients' funds separate from his own; failed to notify clients of the receipt of funds belonging to them; failed to maintain required trust account records; failed to protect clients' interests at the termination of the representation; failed to advise clients of the status of their legal matters; engaged in conduct prejudicial to the administration of justice; and engaged in conduct adversely affecting his fitness to practice law. In re Kelly, 1995-NMSC-038, 119 N.M. 807, 896 P.2d 487. Disbarment was justified because of the inadequacy of an attorney's representation of clients in violation of Rules 16-101, 16-102(A), 16-103 and 16-104(A) NMRA, by his adverse business transaction with a client and misappropriation of trust account funds in violation of Paragraph (D) of this rule and Rules 16-108 and 16-115 NMRA, and violation of Rule 16-801 NMRA and other rules relating to disciplinary proceedings. In re Darnell, 1997-NMSC-025, 123 N.M. 323, 940 P.2d 171. Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law §§ 173 to 176. Legal malpractice in connection with attorney's withdrawal as counsel, 6 A.L.R.4th 342. Circumstances under which attorney retains right to compensation notwithstanding voluntary withdrawal from case, 53 A.L.R.5th 287. 7A C.J.S. Attorney and Client §§ 221, 222.