Careful how you get free from a case or a client

By Diane Karpman

Karpman

Janis Joplin sang, “Freedom’s just another word for nothin’ left to lose.” When a lawyer needs to be free from a filed case, there is a lot to lose, including your license and safety from civil liability. After much soul searching, and imploring recalcitrant clients to substitute in pro per, sometimes an attorney will have no alternative but to make a motion for withdrawal.

Judicial Council Form MC-051, the Motion to Be Relieved as Counsel, may be insufficient, because “blanket statements” are only accepted in criminal cases where Sixth Amendment concerns tip the scales toward approval. The court will be suspicious, because this pesky motion is often brought on the eve of an event and could delay the calendar, a surefire way to incur judicial wrath. It would be wonderful, at least in California, where voters approved millions to fund stem cell research, if judges could be  injected with “extrasensory perception” stem cell genes. That way, they could read your mind and understand what is really going on. But, sadly, this is not the case, at least not yet.

Rule of Professional Conduct 3-700 (B)(2), “Mandatory Withdrawal,” will be the justification for the motion if continued representation will result in a violation of the rules or State Bar Act. Characterizing it as “mandatory” means that recovery of fees may be possible. If the withdrawal is “permissive,” fee recovery is based upon whether withdrawal was justifiable. Russ, Milband & Smith v. Conkle & Olesten (2003)113 Cal. App. 4th 656.

It is almost axiomatic that withdrawal will be caused by a conflict of interest, which will be client-created. There are at least nine types of conflicts (66 Cal. App. 4th 1128). The most serious of these involves the financial interest of the lawyer conflicting with the interests of the client. Threats of a malpractice action or a State Bar complaint against the lawyer or firm may create an unconsentable conflict. Lawyers can be relieved of liability for malpractice in the withdrawal, over the client’s objection, if the court approved the motion. Washington v. Rucker (1992) 202 Ga. App. 888.

Most lawyers are uncomfortable about explaining the gory details in the motion, a public document, and may not realize that it is permissible to request an in camera review of the motion. If that review is sought, it is important to remember to request that opposing counsel be excluded. Caution is recommended, should the in camera review occur, since the client has probably never consented to the attorney’s disclosing of confidential information. If the client mounts a full-throttle attack against the lawyer, that could possibly trigger the self-defense exception to the duty of confidentiality, or it could be construed as a waiver of the privilege.

Usually this column is “ripped from the headlines,” but when I receive too many calls from lawyers who are confused about a particular topic, that issue merits consideration. So, now I hope that you are not “feelin’ near as faded as your jeans,” and realize that you, too, can be free.

• Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at karpethics@aol.com.