Concept
Tribunal Permission and Orders
Mandatory withdrawal: when the lawyer must decline or end the representation
Tribunal Permission and Orders
A lawyer who has found a mandatory ground for withdrawal still may not simply walk away from a case a court is handling. Every mandatory ground in Rule 1.16(a) opens with the qualifier "Except as stated in paragraph (c)," and paragraph (c) is where the rule takes the final word from the lawyer and gives it to the tribunal.1
Paragraph (c) gives two commands. First, the lawyer must comply with applicable law that requires notice to a tribunal, or its permission, when she ends a representation. Second, when a tribunal orders her to continue, she must continue even though good cause exists to stop.2 The four mandatory grounds fix the lawyer's duty to leave. Paragraph (c) decides who determines when she may actually go, whenever a court has a stake in the matter.
The first command depends on law outside the rule. The rule does not say when notice or leave is required. Court rules and other law answer that question, and the Model Rule makes compliance with them a professional duty. A requirement of leave needs a tribunal to grant it, so it arises where a tribunal already has the matter, most often in pending litigation and in representation by court-appointed counsel. A lawyer in either setting who stops working where the law requires leave has ended the representation without the permission she needed, and the violation is hers.
The second command is the stronger one. The text reads: "When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation."3 A mandatory ground is itself good cause, and paragraph (a) yields to paragraph (c), so the court's order controls even when the lawyer would otherwise be bound to withdraw. The permissive paragraph opens with the same qualifier, so a lawyer with only a permissive reason to leave answers to the same control.4 A mandatory ground therefore gives the lawyer a duty to seek release from the tribunal. It does not give her the power to release herself.
The tests courts apply show why the decision sits with the tribunal. One court put it this way: whether counsel may withdraw "depends upon such considerations as proximity of the trial and possibility for the client to obtain other representation."5 The lawyer knows her own reasons for leaving. Only the court can see how close the trial is and whether the client has time to find a replacement. If a ground could end a lawyer's duties the moment it arose, a ground that arose on the eve of trial could strand the client. Making the departure depend on the tribunal lets one decision-maker weigh those facts against the lawyer's reasons. Florida's version of the rule, numbered Rule 4-1.16(e), makes the same point: even with good cause to end a representation, a lawyer is obliged to continue if a tribunal so orders.6
The exam question is what a lawyer should do when a mandatory ground exists in a case already before a court. She asks the court for leave, and she keeps acting for the client until the court allows her to stop.
Two instincts lose points here. The first treats the mandatory ground as self-executing: the lawyer stops working and mails a notice of withdrawal, which skips the gate that the first command creates. The second treats the pending case as if it suspended the ground, so the lawyer carries on as though nothing had happened. The ground still exists, and a motion to the tribunal is how the lawyer honors paragraph (a) and paragraph (c) together. When the court says no, its order governs and the lawyer continues.7
The only fact that has moved between the two hypotheticals is the presence of a tribunal. Both lawyers have a mandatory ground, and only the lawyer with a pending proceeding must go through the court. How either lawyer protects the client on the way out is the subject of the next sections.