Sorting a Withdrawal Problem

Sorting a Withdrawal Problem

The opening words of paragraph (b), "Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:", set the order for working any withdrawal problem.¹ The word may turns each ground into an option, and the exception clause subordinates every option to a tribunal's power to order the lawyer to continue. Paragraph (a) sits before the list and names the situations in which the lawyer has no choice; paragraph (d) sits after it and governs how a permitted departure is carried out. Each question settles what the next one assumes. A lawyer cannot weigh an option until it is clear that no duty to withdraw applies, a satisfied ground proves only that the lawyer may leave if no tribunal objects, and the manner of leaving matters only once the departure is allowed.

The second question starts with harm because the harm-free ground is the cheapest to prove. Paragraph (b)(1) asks one thing: can withdrawal be accomplished without material adverse effect on the client's interests? If it can, the lawyer needs no other justification.² A student who finds that leaving would hurt the client should keep reading the list, because the lawyer is not trapped. Paragraph (b)(2), for one, permits withdrawal when the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent, and it says nothing about harm to the client.³

The first question changes the answer most often, and a single fact can decide it: what the lawyer knows. Compare two lawyers whose clients insist on sending out documents the lawyer thinks are fraudulent, when leaving would sink the client's financing.

Alvarez has no paragraph (a) duty, because she does not know that her work will materially further a fraud. Paragraph (b)(1) fails on the harm, but paragraph (b)(2) is satisfied: the client persists after her advice, the course involves her services, and her belief is reasonable.⁴ Withdrawal is therefore optional for her. No tribunal is involved, so the third question is idle, and the fourth requires her to give notice and time to find new counsel if she leaves. Brandt's problem ends at the first question. He knows that sending the package will materially further a fraud, so paragraph (a)(1) requires him to withdraw, and the client's harm cannot change that because the permissive list never comes into play. One variable moved the answer: what the lawyer knew.

Threatened client perjury follows the same sequence. The Court in Nix v. Whiteside summarized the ABA's amicus position on the first question: under no circumstance may a lawyer either advocate or passively tolerate a client's giving false testimony.⁵ The Court described it as universally agreed that a lawyer confronted with a proposal for perjured testimony must at a minimum first try to dissuade the client, and it observed that the Model Rules and their commentary treat withdrawal as an appropriate response when a client threatens perjury.⁶ Dissuasion comes first because a client who abandons the plan ends the problem; if the client persists, the lawyer's knowledge decides whether withdrawal is optional or required. Withdrawal at trial raises difficult questions of its own, including possible mistrial and claims of double jeopardy, which is the third question at the point where a lawyer's wish to leave meets the court's calendar.⁷

Students make two mistakes on withdrawal problems. One is to treat a mandatory case as optional, as a student does who sees that Brandt's client would lose the financing and reaches for the permissive list. The other is to find a satisfied ground in a pending case and write that the lawyer may withdraw, when the answer is that the lawyer may seek leave and the tribunal decides. Asking the four questions in order prevents both.