Bowing Out Professionally

1. Bowing Out Professionally Effective Settlements and How to Ethically Withdraw to Avoid Malpractice

2. Withdrawal • Prior to entry of appearance before a tribunal must comply with -- • Rule 4-1.16 • After entry of appearance must comply with – • Rule 4-1.16 and • Any applicable law requiring notice to or permission of the tribunal • Rule 4-1.16(c)

3. See Rule 4-1.2 for Scope of Representation and Rule 55.03(b)(3) for limited entry of appearance and termination of limited appearance Rule 4-1.16(c) • (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation unless the lawyer has filed a notice of termination of limited appearance. Except when such notice is filed, a lawyer shall continue representation when ordered to do so by a tribunal notwithstanding good cause for terminating the representation.

4. Mandatory WithdrawalRule 4-1.16(a) • The representation will result in violation of the rules of professional conduct or other law; • The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or • The lawyer is discharged.

5. Permissive WithdrawalRule 4-1.16(b) • (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 is criminal or fraudulent; • (3) The client has used the lawyer’s services to perpetrate a crime or fraud;

6. Permissive WithdrawalRule 4-1.16(b) • (4) The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; • (5) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

7. Permissive WithdrawalRule 4-1.16(b) • (6) The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or • (7) Other good cause for withdrawal exists.

8. Duties After WithdrawalRule 4-1.16(d) • 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 payment of fee or expense that has not been earned or incurred. • The lawyer may retain papers relating to the client to the extent permitted by other law.

9. Duties After Withdrawal • Still subject to Rules of Professional Responsibility • See particularly -- • Rule 4-1.6 – Confidentiality of Information • Rule 4-1.9 – Duties to Former Clients • Rule 4-1.15 – Safekeeping Property

10. Actual Cases – Discipline Imposed

11. Actual Cases – Discipline Imposed

12. Actual Cases – Discipline Imposed

13. Actual Cases – Discipline Imposed

14. Actual Cases – Discipline Imposed

15. Informal Opinions • Opinion Number: 20060053 - Rule Number:  • QUESTION: Attorney has reason to believe that a Trustee misappropriated, and perhaps stole, funds from a Trust. Since Attorney represented the Trustee, is Attorney permitted to notify and inform the other beneficiaries of the Trustee's management of the Trust and of Attorney's suspicions? To Attorney's knowledge, the other beneficiaries have received no information regarding the Trust, and they have not contacted Attorney. • ANSWER: Attorney may not disclose the information to the other beneficiaries, unless Attorney has the consent of the Trustee. If the Trustee will come forward with the necessary information, Attorney may continue to represent the Trustee in attempting to resolve any problems. It is permissible for Attorney to advise the Trustee that Attorney will withdraw if the Trustee is unwilling to take the steps Attorney believes to be necessary, including consenting to disclosure to the other beneficiaries. It is also permissible for Attorney to withdraw, at this point, regardless of the steps the Trustee is willing to take. If the Trustee is not willing to take the steps necessary to resolve the problem and Attorney believes that the Trustee's conduct is fraudulent or criminal, Attorney must withdraw if Attorney's representation would assist the fraudulent or criminal activity.

16. Informal Opinions • Opinion Number: 20030049  - Rule Number: 1.1; 1.16  • QUESTION: Attorney's law firm recently lost the attorneys in its litigation department and those attorneys are not able to continue to handle the litigation. Before leaving, one of the attorneys won a trial on a personal injury case. The case was reversed and remanded for new trial. Attorney's firm does not have anyone who can represent this client adequately. Attorney's firm has been unsuccessful in securing other counsel for the client. The case is not on a trial docket. May Attorney's firm withdraw under these circumstances?  • ANSWER: It is permissible for Attorney's firm to seek to withdraw, if you the firm can do so at a time that will not be materially adverse to the client. Whether a case is on a trial docket would be one factor in determining whether withdrawal, at a given time, will be materially adverse. However, there could be other factors to consider, such as discovery, court orders, etc. If there are no factors that will cause withdrawal to be materially adverse to the client, Attorney's firm may seek to withdraw, notwithstanding the fact that the client has been unable to find other counsel.Whether Attorney's firm is permitted to withdraw is entirely in the discretion of the court. If the court refuses to allow withdrawal, under Rule 4-1.16(c), Attorney's firm must stay in the case and represent the client. Attorney's firm should be sure to inform the court of its concerns about its ability to adequately represent the client, in the course of seeking leave to withdraw.

17. Informal Opinions • Opinion Number: 20030047 - Rule Number: 1.16(d); 1.15  • QUESTION: If Attorney sends a client a courtesy copy of all pleadings at the time of filing and a copy of all pleadings filed by opposing counsel (with a notation that it is a courtesy copy for the client's information and safekeeping), is it necessary to copy the file and provide the documents again to the client? May attorney charge for copies of documents previously sent to client? • ANSWER: It is permissible for copies provided to the client during the course of the representation to serve as client's file, or a portion of the client's file, if two conditions are met. First, Attorney would have had to provide an explanation of this process prior to sending the copies. Second, the original of the file belongs to the client. Therefore, if there is an original in the file, a copy does not fulfill the obligation to the client unless the attorney and client have agreed that it will. If both conditions are not met, attorney should provide the file to the client and keep copies at Attorney's own expense.

18. Informal Opinions • Opinion Number: 20030010 - Rule Number: 1.16  • QUESTION: Attorney represented client in a matter which is now concluded. Attorney advanced funds for court reporter fees and transcripts. The client has requested copies of the transcripts, but has not reimbursed Attorney for these expenses. Must Attorney provide copies of the transcripts to the client? • ANSWER: Rule 4-1.16 requires Attorney to return the client's property to the client at the conclusion of the representation. However, under Formal Opinion 115, as amended, Attorney may withhold items for which Attorney has paid out-of-pocket and has not been reimbursed.

19. Informal Opinions • Opinion Number: 20000172 - Rule Number: 1.3; 1.16(b); 1.5  • QUESTION: Attorney would like to add a provision to Attorney's standard engagement letter for civil cases, particularly domestic relations cases. Is it permissible to state in the engagement letter that if the client does not make payment, Attorney will stop working on his or her case? Attorney would like to state that Attorney will not continue to work on a client's case if no payments are made. • ANSWER: Attorney may not include the provision Attorney proposes in Attorney's engagement letter. Under Rule 4-1.3, Attorney has an obligation to diligently represent Attorney´s client, unless Attorney withdraws. If Attorney has not been paid, Attorney´s option is to continue to diligently represent the client and seek payment, or seek to withdraw. Attorney may seek to withdraw under Rule 4-1.16(b), only if withdrawal may be accomplished without ´material adverse effect on the interests of the client.

20. Informal Opinions • Opinion Number: 960110 - Rule Number: 1.16  • QUESTION: Attorney represents a client in a matter which is set for hearing in several months. The client did not divulge certain information to Attorney which Attorney has now learned. If Attorney had been aware of this information, Attorney would not have taken the case. May Attorney seek to withdraw? • ANSWER: Attorney may withdraw, if Attorney is allowed by the tribunal to do so, as long as Attorney is not at a point in the proceedings such that the withdrawal will have a materially adverse effect on Attorney´s client.

21. Informal Opinions • Opinion Number: 950248 - Rule Number: 1.16  • QUESTION: Attorney has lost contact with the clients. Attorney wishes to withdraw. What is Attorney required to do to notify the clients? • ANSWER: Attorney has a duty to take all reasonable steps to contact the clients. It is unclear from the information Attorney has provided whether Attorney has taken sufficient steps under the circumstances. Attorney is not required to hire a private investigator but Attorney should conduct a reasonable investigation. Attorney has not indicated whether Attorney has checked with various agencies or businesses that may have received notification of an address change. The Department of Revenue (drivers and motor vehicle licenses), employers, banks and relatives all may be appropriate to contact, depending on the circumstances. Attorney is not required to give notification to the clients by publication if Attorney is unable to contact them any other way, but Attorney may do so. Attorney should also seek guidance from Attorney´s malpractice insurer's claims prevention office, regarding any additional steps they may recommend.

22. Informal Opinions • Opinion Number: 940175 - Rule Number: 1.16;5.24  • QUESTION: Attorney is the trustee in bankruptcy for an attorney who is now deceased. The deceased attorney had closed client files from many years of practice. What should the trustee do about the files? • ANSWER: Rule 5.24 provides a mechanism for appointment of a trustee to wind up the practice of a deceased attorney. That rule would not prohibit the bankruptcy trustee from also being the trustee for the practice. The attorney who is appointed trustee under Rule 5.24 should make an effort to return the files to the clients.

23. Informal Opinions • Opinion Number: 940065 - Rule Number: 1.5;1.16(d)  • QUESTION: Attorney accepted a case on a flat fee basis. Attorney now wishes to withdraw before the case is concluded due to the client's lack of cooperation. Attorney states that, as a result of client's lack of cooperation, attorney fees valuing several times the flat fee paid have been provided. May Attorney withdraw and, if so, what amount of refund, if any, is owed the client? • ANSWER: Attorney may ask the court for leave to withdraw. This office cannot resolved factual issues such as the amount of a refund owed in the context of an informal advisory opinion.

24. Informal Opinions • Opinion Number: 940059 - Rule Number: 1.4;1.16(d)  • QUESTION: Attorney is representing the class in a class action suit. One of the members of the class is recruiting class members and obtaining the attorney fee which is forwarded to Attorney. May Attorney accept these people as clients in this manner? • ANSWER: Yes. Once Attorney accepts them as clients, Attorney must communicate with them directly affirming Attorney´s representation and communicating about the case before taking any action as their attorney. If they change their mind after direct communication, Attorney must refund the fee under Rule 4-1.16. This opinion does not consider any restrictions the court may impose.

25. Informal Opinions • Opinion Number: 940038 - Rule Number: 1.16  • QUESTION: Attorney and the client have disagreed over the amount of settlement that would be reasonable. As a result, the client has discharged Attorney twice but has returned when other attorneys told the client that Attorney´s assessment of the case was reasonable. May Attorney withdraw? • ANSWER: Yes. Attorney must comply with all of the requirements of Rule 4-1.16(d), including the requirement that Attorney not withdraw if the withdrawal would have a materially adverse impact on the interests of Attorney´s client.

26. Informal Opinions • Opinion Number: 940027 - Rule Number: 1.6  • QUESTION: Attorney's client is receiving Medicaid. Attorney has obtained agreement from an insurance company to settle a personal injury case. Statutes require both Attorney and client to notify Social Services of the settlement. Client has withdrawn authority to settle and discharged Attorney after Attorney informed client of this obligation. May Attorney report to Social Services? • ANSWER: If Attorney reports without client's consent, Attorney will violate the confidentiality obligation under Rule 4-1.6. Attorney should counsel client regarding the obligations under the statutes prior to withdrawing. If client will not consent to reporting, Attorney must remain silent and withdraw under Rule 4-1.16(a)(1).

27. Informal Opinions • Opinion Number: 940019 - Rule Number: 1.16  • Question 1. May Attorney move to withdraw from a criminal case if the client is uncooperative and will not communicate or assist with the defense? The Attorney will warn the client that Attorney will withdraw if the situation doesn't improve before the Attorney actually withdraws. • Question 2. If a client who is a criminal defendant fails to make a court date and a warrant is issued and the client has had no contact with Attorney for several weeks or months, may Attorney move to withdraw? • ANSWER: Yes to both questions. However, the fact that the Rules of Professional Conduct allow Attorney to move to withdraw does not affect the authority of the court to refuse to sustain that motion.

28. Informal Opinions • Opinion Number: 940011 - Rule Number: 1.16  • QUESTION: Attorney accepted a client in a dissolution case. Attorney accepted the retainer and the filing fee but has not filed. If Attorney returns the filing fee and retainer, may Attorney withdraw? • ANSWER: Yes.

29. Informal Opinions • Opinion Number: 930099 - Rule Number: 1.16  • QUESTION: May an attorney withdraw from a case due to the client's interference with the representation? • ANSWER: Yes. Attorney must comply with all of the requirements of Rule 1.16(d).

30. In re Donaho98 S.W.3d 871 (Mo. banc 2003) • Donaho, licensed in both Illinois and Missouri agreed to represent Campbell in a post-dissolution action • Campbell paid him $700 fee and $60 filing fee • Donaho prepared the motion and sent it to Campbell, who promptly signed and returned it • Donaho took no further action

31. In re Donaho98 S.W.3d 871 (Mo. banc 2003) • Six months later Donoho closed his Illinois office and opened a new office in St. Louis • Did not inform Campbell of new address or telephone number • Campbell – • Left messages on Donaho’s home phone which he did not return • Tried to contact him at new office and he did not respond • Send certified letter to new office, which he received but did not respond

32. In re Donaho98 S.W.3d 871 (Mo. banc 2003) • Campbell demanded return of fee • Donaho responded that he would return the fee if Campbell signed a complete release • Donaho drafted the release, but did not advise Campbell to seek independent advice • Campbell signed and returned the release • Donaho failed to return the money as promised

33. In re Donaho98 S.W.3d 871 (Mo. banc 2003) • Campbell filed suit in small claims and obtained a default judgment for $765, which Donaho did not pay • Campbell filed complaint with OCDC • Disciplinary committee indicated to Donaho that timely payment of the judgment would be considered a mitigating factor and would be viewed favorably if satisfied by a certain date • Donaho faxed copies of two money orders made out to Campbell and represented that they had been sent to Campbell • Committee admonished Donaho and closed file • Instead of mailing the money orders to Campbell, however, Donaho cashed them for his own use

34. In re Donaho98 S.W.3d 871 (Mo. banc 2003) • Campbell filed second complaint with OCDC – • Among the rule violations the committee included in the charge was a violation of Rule 4-1.16(d) • Supreme court stated: “As noted in the disciplinary rules, ‘[p]erhaps no professional shortcoming is more widely resented than procrastination.’ Rule 4-1.3, Comment. Of course, the fact that Respondent failed to refund the advance fee upon the termination of representation as required by Rule 4-1.16(d) compounds the problem. • Supreme Court suspended Donaho’s license indefinitely with leave to apply for reinstatement no sooner than twelve months after date of opinion • Supreme Court noted in passing that: “the evidence suggests that [Donaho] may have been suffering from a drinking problem during the time in question”

35. In the Interest of P.D.144 S.W.3d 907 (Mo.App., E.D. 2003) • Lawyer represented natural mother in termination of parental rights case • Hearing on September 23 • Mother was present • Case set for trial on December 17 • Lawyer sent mother letter confirming trial date • Date of trial Mother did not appear • Lawyer moved for continuance, which court denied • Lawyer orally moved to withdraw, which court sustained

36. In the Interest of P.D.144 S.W.3d 907 (Mo.App., E.D. 2003) • On appeal mother claimed trial court abused its discretion is allowing her lawyer to withdraw • Eastern District, citing Rule 4-1.16 and a local court rule, held that trial court abused its discretion because there was nothing in the record that lawyer had provided mother with notice of his intent to request to withdraw • Judgment of termination was reversed

37. Effective and Ethical Settlements • Rule 4-1.2 • A lawyer shall abide by a client’s decisions concerning the objectives of the representation • A lawyer shall abide by a client’s decision whether to settle a matter • Comment 3: At the outset of the representation, the client may authorize the lawyer to take specific action on client’s behalf without further consultation

38. Effective and Ethical Settlements • Rule 4-1.4 requires that the lawyer explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation • Interplay between Rule 4-1.2 and 4-1.4 • Client’s decision whether or not to settle a case must be an informed decision

39. Effective and Ethical Settlements • Rule 4-4.1 prohibits a lawyer from making a false statement of material fact to a 3rd person while representing a client • What about false statements made by counsel during a settlement negotiation? • Comment 2: Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact (e.g., estimates of value or the client’s intentions as to an acceptable settlement of a claim)

40. In re Coleman, 295 S.W.3d 857 (Mo. banc 2009) Client hired Coleman to represent her in 3 separate civil actions (med. malpractice, wrongful term. and discrimination cases) During next 5 years, client paid Coleman up to $50,000 in fees and expenses. When client no longer able to pay additional fees, Coleman suggested converting the 3 cases to contingent fee agreements. Client agreed.

41. In re Coleman “In consideration of one-third (1/3) of any recovery, I agree to forego my hourly rate, and instead, agree to accept one-third of any recovery. However, because I am taking a risk with you on this case, and because I am more familiar with the legal trends relative to judgments, settlements, and summary disposition, you agree I shall have the exclusive right to determine when and for how much to settle this case. That way, I am not held hostage to an agreement I disagree with.”

42. In re Coleman The employer in the discrimination case offered to settle the client’s claim for $20,000. The client rejected the offer. Coleman settled the case without his client’s consent. Coleman submitted settlement documents to the client. Client refused to sign and insisted on proceeding to trial. Coleman withdrew in all 3 cases and filed a motion to enforce settlement in the discrimination case.

43. In re Coleman Violations found by the Court: Rule 4-1.2 (Scope of Representation) by accepting a settlement offer without client consent and filing a motion to enforce the settlement; Rule 4-1.7 (Conflict of Interest) by entering into a written agreement with his client purporting to give Coleman exclusive settlement rights and taking actions adverse to the client’s interests; Rule 4-1.16 (Terminating Representation) by failing to protect his client’s interests upon termination Rule 4-8.4 (Misconduct) by engaging in conduct prejudicial to the administration of justice. Discipline ordered: one year stayed suspension with probation.

44. Questions?