Advisory Opinion: 2225
Year Issued: 2012
RPC(s): RPC 1.2(a), 1.2(f), 1.4, 1.6, 1.16, RCW 2.44
Subject: Attorney Withdrawal in Immigration Matters


The Committee received an inquiry concerning a lawyer’s rights and duties to withdraw from representation in the context of representing clients in immigration matters. To facilitate a comprehensive analysis, the Committee modified the inquiry to the following:

It is standard practice in most offices for the lawyer to set deadlines for immigration clients for the return of information necessary to properly complete forms and supporting documents. The lawyer is unable to complete the forms and gather supporting documents without the client’s assistance. If the lawyer does not comply with the Immigration Court’s deadline, then the lawyer risks discipline by the Immigration Judge (who has the authority to file a formal complaint with EOIR against the lawyer).

In other situations, an immigration client has failed to pay the lawyer, but has not formally discharged the lawyer or responded to the lawyer’s demands for payment.

In these circumstances:

1. When a client refuses to communicate with the lawyer sufficiently to permit effective representation, may the lawyer withdraw from representation, and is the lawyer required to withdraw?

2. When a client fails to respond to the lawyer’s demand for payments due for past services, may the lawyer withdraw from representation?

3. In supporting a motion to withdraw, may a lawyer disclose to the court that the basis for the lawyer’s motion is the client’s failure to respond to requests for information or supporting documents, failure to pay fees for past services, or the lawyer’s inability to locate the client?

4. When a client discharges a lawyer but is subsequently arrested during the period that the lawyer’s withdrawal motion is pending, what are the lawyer’s ethical obligations with respect to the client’s post-discharge arrest?

5. What are a lawyer’s ethical obligations if a judge delays ruling on a withdrawal motion or denies the motion?

Analysis

1. When a client refuses to communicate with the lawyer sufficiently to permit effective representation, may the lawyer withdraw from representation, and is the lawyer required to withdraw?

Permissive withdrawal
When a client refuses to communicate with a lawyer sufficiently to permit effective representation, the lawyer is permitted to withdraw after making reasonable efforts to locate and communicate with the client. RPC 1.16(b)(5) allows withdrawal when a client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and the client has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled. The client’s disappearance or failure to communicate with the lawyer constitutes a failure to fulfill an obligation to the lawyer, and is therefore appropriate grounds for the lawyer’s withdrawal. See Advisory Opinions 1796, 1873.

In addition, under RPC 1.16(b)(6), a lawyer may withdraw if representation has been rendered unreasonably difficult by the client. The client’s disappearance and failure to communicate, in circumstances in which the lawyer needs to be in contact with the client to represent that client effectively, constitutes alternative grounds for withdrawal. See Advisory Opinions 1796, 1873.

Mandatory withdrawal
A lawyer must withdraw if either discharged by the client (RPC 1.16(a)(3)) or continued representation will result in violation of the Rules of Professional Conduct or other law (RPC 1.16(a)(1)). The determination of whether an attorney-client relationship has concluded on a particular matter is generally an issue of fact that is determined using common law standards rather than the RPCs. See Hipple v. McFadden, 161 Wn.App. 550, 558-59, 255 P.3d 730 (2011). Termination of an attorney-client relationship may be implied from the circumstances. Id. at 559. Under the test announced in Hipple, an attorney-client relationship on a particular matter is generally considered concluded when “the client has no reasonable expectation of continued representation.” Id. at 559.

RCW Chapter 2.44 governs attorney authority and generally requires an attorney to have client authority to proceed with a representation. If a client has disappeared or fails to communicate despite the lawyer’s reasonable efforts to locate and communicate with the client, then, depending on the particular circumstances involved, the lawyer may reasonably conclude that the lawyer no longer has the requisite authority to proceed on behalf of the client under RCW Chapter 2.44 and that mandatory withdraw is triggered under RPC 1.16(a)(1). If so, the lawyer would still need to comply with any court requirements for seeking withdrawal in accord with RPC 1.16(c).

2. When a client fails to respond to the lawyer’s demand for payments due for past services, may the lawyer withdraw from representation?

Yes, the lawyer may withdraw if a client has failed to pay for services after the lawyer has given reasonable warning that the lawyer will withdraw absent payment. In those circumstances, the client’s failure to pay would constitute the client’s failure to fulfill an obligation to the lawyer under RPC 1.16(b)(5). See RPC 1.16, Comment [8]. Withdrawal is also permitted under RPC 1.16(b)(6) if the client’s failure to pay would make continued representation an unreasonable financial burden on the lawyer.

3. In supporting a motion to withdraw, may a lawyer disclose to the court that the basis for the lawyer’s motion is the client’s failure to respond to requests for information or supporting documents, failure to pay fees for past services, or the lawyer’s inability to locate the client?

A lawyer’s duty of confidentiality under RPC 1.6 remains in effect when seeking a court’s permission to withdraw. Even if information in the lawyer’s possession would support withdrawal and is necessary to provide a full explanation, the lawyer may not disclose that information if it is protected by RPC 1.6.

Although RPC 1.6 does not prohibit a lawyer from providing notice of withdrawal (RPC 1.6, Comment [25]), lawyers are cautioned that confidentiality obligations are broad, and apply “not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” RPC 1.6, Comment [3]. The duty of confidentiality remains in effect after the lawyer-client relationship ends (RPC 1.6, Comment [18]), so even when the lawyer is seeking to withdraw based on actual or constructive discharge, the lawyer may not disclose information that is subject to RPC 1.6 protections to the tribunal.

The comments to the RPCs recognize the tension between confidentiality obligations and the practical necessity to provide the court with an adequate explanation for the basis for withdrawal: “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.” RPC 1.16, Comment [3]. Thus, the rules anticipate a framework in which the court will render a decision, even if the lawyer has provided only a limited factual background. If the court deems it necessary to have additional information, then the court may order the lawyer to disclose that information, and the lawyer may then disclose under RPC 1.6(a)(6) (a lawyer “may reveal information relating to the representation of a client to comply with a court order”). Even then, however, the lawyer should limit disclosure to the extent reasonably possible. As Comment [14] to RPC 1.6 provides, “a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose. If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.”

4. When a client discharges a lawyer but is subsequently arrested during the period that the lawyer’s withdrawal motion is pending, what are the lawyer’s ethical obligations with respect to the client’s post-discharge arrest?

The client’s discharge of the lawyer typically terminates the lawyer’s right and obligation to speak or take any actions on the client’s behalf, even for the purpose of furthering the client’s perceived interests. RPC 1.16(a)(3); see also Advisory Opinion 954 (lawyer’s inability to reach the client precludes the lawyer from taking any further action on the client’s behalf); Advisory Opinion 1527 (lawyer’s withdrawal precludes the lawyer from signing court order, even though the lawyer’s representation was still in effect at the time of the underlying hearing); Advisory Opinion 1873 (when the client has disappeared, the lawyer may not settle the client’s claim without specific authority from the client).

Here, the lawyer has been discharged by the client, but the lawyer’s withdrawal motion has not yet been granted by the court. With respect to the underlying action, the lawyer must continue to represent the client until the court has granted the withdrawal motion, subject to the limitations on representation in light of that discharge (see further analysis below). If the arrest is on an unrelated matter, then even if that arrest would affect the matter in which the withdrawal motion is pending, the lawyer has no right or obligation to take further action absent a new engagement.

5. What are a lawyer’s ethical obligations if a judge delays ruling on a withdrawal motion or denies the motion?

If a lawyer has moved to withdraw, the lawyer must continue to serve until the court grants that motion. Even when proper grounds for withdrawal exist, a lawyer must continue representation if ordered to do so by a tribunal. RPC 1.16(c); see also Advisory Opinion 1169; RPC 1.2(f) (prohibiting a lawyer from acting on behalf of a person or organization without authority “unless the lawyer is authorized or required to so act by law or a court order”; Comment [17] to that rule explicitly identifies a court’s denial of a withdrawal motion under RPC 1.16(c) as grounds for a lawyer to continue acting on behalf of a client, even absent client authority).

Continued representation while a withdraw motion is pending presents obvious pitfalls, particularly if the client’s disappearance or refusal to communicate is the basis for withdrawal. Although a lawyer ordinarily may not take action without his or her client’s direction and consent, he or she may be faced with the necessity to take action or make decisions, despite the absence of the client, if a court delays ruling on a withdrawal motion or denies the motion. In that event (and, in the case of a pending withdrawal motion, after diligently pursuing a ruling from the court), while the lawyer may not substitute his or her own objectives, the lawyer must continue representation consistent with the known objectives of the client. See RPC 1.2(a) and Comment [3] (“At the outset of a representation, the client may authorize the lawyer to take specific action on the client’s behalf without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization”).

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Rules of Professional Conduct Committee. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law than the meaning of the Rules of Professional Conduct. Advisory Opinions are based upon facts of the inquiry as presented to the committee.