The Client-Lawyer Relationship · 10-16% of the exam
5.2.2How to exit: court permission, post-withdrawal duties, and fees (Rules 1.16(c)–(d), 1.15)
On this page
- Rules 1.16(c)–(d) and 1.15 — Court permission, post-withdrawal duties, fees
RRR
- R1Reasonable notice
- R2Refund unearned fees
- R3Return papers/property
Why
A lawyer's exit is not only the lawyer's own business. A tribunal that has scheduled the work has an interest in orderly proceedings; a client whose lawyer walks away mid-representation is at the most exposed point of the whole relationship — easiest to strand without counsel, easiest to separate from their own money and papers. Both interests come due at once when the lawyer wants out of something already sitting before a tribunal.
Plain English
Where applicable law requires notice to or permission of the tribunal, a lawyer must comply with it before terminating — and must continue the representation if the tribunal orders it. So before you sort the ground into mandatory or permissive, ask: is this matter already in front of a tribunal?
Upon termination of the representation, however it comes about, the lawyer must take steps to the extent reasonably practicable to protect the client's interests; the RRR duties are the rule's own examples: reasonable notice, refund of unearned money, and return of the client's papers — with time allowed to obtain new counsel. Quantum meruit fees are subject to the original agreement's ceiling — case law, not Rule 1.16's text.
Rule
Rules 1.16(c)–(d) and 1.15 — Court permission, post-withdrawal duties, fees
Rule 1.16(c): Applicable law generally requires notice to, or permission of, the tribunal before withdrawing from a pending matter. If permission is denied, the lawyer must continue even when valid mandatory or permissive grounds exist. The justification required grows as the litigation progresses. Comment [3]: where the lawyer was appointed, withdrawal ordinarily also requires the approval of the appointing authority (see Rule 6.2, Chapter 22).
Rule 1.16(d) — Post-withdrawal duties (RRR): upon termination of the representation, the lawyer shall take steps to the extent reasonably practicable to protect the client's interests — the items below are the rule's own examples ("such as"), not a closed list — and, even if the lawyer has been unfairly discharged by the client, must take all reasonable steps to mitigate the consequences to the client (Comment [9]).
- Reasonable notice to the client.
- Refund any advance payment of fee or expense not yet earned or incurred.
- Return all papers and property to which the client is entitled; allow time to obtain new counsel.
Retaining lien: if the client owes a fee, the lawyer may retain papers relating to the client to the extent permitted by other law (Rule 1.16(d)) — a passive retaining lien on files and papers in the lawyer's possession. The lien is passive — the lawyer may not sell the property and may not assert the lien in a way that materially harms the client's active matter.
Fees on discharge or withdrawal — case law, not Rule 1.16's text:
- A quantum meruit claim survives for the fair value of work already performed; whatever ceiling the original agreement set remains the upper limit.
- Contingent fee discharged mid-case: the quantum meruit claim does not arise until the contingency occurs; recovery may not exceed the agreed contingent percentage applied to the ultimate recovery.
Rule 1.15(e) — Third-party claims on trust funds: see the Quick review box in the fees section above (fully taught in Chapter 20).
Rule 1.15(a): Complete records of client funds and property must be maintained after termination of representation — the Model Rule suggests five years; each state sets its own period.
Rule 1.3 cmt [4]: doubt about whether the client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing.
Mnemonic
Mnemonic
Post-withdrawal duties: RRR — Reasonable notice · Refund unearned fees · Return papers/property.
Vocabulary: Two fee-security lien types: the retaining lien (passive — the lawyer holds the client's files and papers until a fee dispute resolves, to the extent other law permits, but may not sell the property or harm an active matter) and the charging lien (a lien on the recovery itself as security for fees, where authorized by statute or agreement).
Cross-reference (Rule 1.16(d)): On termination of the representation, two duties run together and neither substitutes for the other: return all unearned advance fees (coordinated with Rule 1.15 trust obligations) and return all client papers and property to which the client is entitled.
Example 1
Ex. 1
Elena represented a client on a 30 percent contingency. The client discharged Elena mid-case without cause; the case later settled for $200,000. Elena's quantum meruit claim was valid but could not arise until the contingency occurred, and its ceiling was 30 percent of $200,000 ($60,000), regardless of the hourly value of her work. Multiply first, and value Elena's hours second — the agreed percentage caps whatever those hours come to.
Example 2
Ex. 2
Wei, a commercial-litigation attorney owed $12,000 in unpaid fees, held the client's trial exhibits until the balance cleared, refusing to release them for a hearing set five days out. The retaining lien is passive: withholding files in a way that materially harms the client's active proceeding is not a permissible use of the lien, even when the underlying fee claim is legitimate. Isolate the calendar — the hearing five days out is what makes Wei's legitimate fee claim beside the point.
The exam will state that a lawyer has a valid mandatory withdrawal ground and suggest court permission is unnecessary. Mandatory grounds don't override Rule 1.16(c); where applicable law requires notice to or permission of the tribunal, the lawyer must comply with it before terminating.
Trap
The exam will suggest the lawyer may use the client's file as a bargaining chip to collect unpaid fees. A retaining lien is passive; withholding the file in a way that materially harms the client in an active proceeding isn't permissible.
The exam will present a dispute over trust funds and suggest the lawyer should pay the full amount to the client while a third-party claim is pending. The disputed portion must remain in trust; only the undisputed portion goes promptly to those entitled.
Questions · 2
Q 01ch05-e08
Question 1 of 2 · Rule 1.16(c)
Attorney was defending Corporation in a trade-secret case set for trial in six weeks. During a document review, Attorney learned that Corporation meant to keep using the firm's work to conceal an ongoing scheme to strip a rival of its engineering designs, and Corporation refused to stop after Attorney explained the limits on the assistance a lawyer may give. Satisfied that the ground for leaving was a mandatory one, Attorney wrote to Corporation the same afternoon, terminated the representation, and shipped the file to Corporation's general counsel. The local rules of the court require leave before counsel of record may withdraw from a pending case. Attorney never asked for leave. Is Attorney subject to discipline?
Keys 1 to 4 choose.