Discharge or Withdrawal

Discharge or Withdrawal

Reporting up the ladder works only while the lawyer stays on the job to carry the problem upward, and the people who decide whether the lawyer stays are often the people the report concerns. A chief executive can end an in-house lawyer's employment. A senior officer who signed the engagement letter can end an outside firm's retention. If termination also ended the reporting duty, the surest way to keep a report from reaching the board would be to remove the lawyer before it arrived.

Rule 1.13(e) closes that gap. A lawyer who reasonably believes that he or she has been discharged because of actions taken under paragraph (b) or (c), or who withdraws under circumstances that require or permit action under either paragraph, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the discharge or withdrawal.¹ The word shall makes the duty mandatory, which sets it apart from the permission in paragraph (c). The duty also arises only after the lawyer has begun the process the earlier subsections describe.

The lawyer's responsibilities under paragraph (b) do not evaporate because the lawyer has been discharged, believes she has been discharged, or chooses to withdraw.² The departure itself therefore reaches the governing body, which learns that something may be wrong and can act on the problem that paragraph (b) was meant to put before it.

The rule also removes the motive for forcing the lawyer out. The lawyer may tell the constituents who stand to be reported that the duty survives any termination, and those constituents may then be less likely to try to silence an objection by firing the lawyer.³ A constituent who weighs that move learns in advance that the firing will carry the objection upward on its own. This is why the duty attaches to the departure and does not rest on the lawyer's general loyalty to the client.

Paragraph (e) has two triggers, and each has its own standard. The discharge trigger turns on the lawyer's reasonable belief about why the firing happened: the lawyer must reasonably believe that it came because of actions taken under paragraph (b) or (c), such as referring a matter to higher authority or disclosing outside the organization.⁴ A bare suspicion will not do, but certainty is not required either, because the person who orders a firing rarely announces the real reason. Timing, the decision maker's remarks, and the sequence of events can all support a reasonable belief. The withdrawal trigger turns on circumstances instead of motive. A lawyer who withdraws when the situation requires or permits action under paragraph (b) or (c) must likewise see that the highest authority learns of the withdrawal.⁵ Suppose, for example, that the highest authority has ignored a report of a serious violation and the lawyer cannot continue the work. A lawyer who quits in that setting leaves the board as uninformed as a lawyer who was fired.

Because the discharge trigger depends on that causal link, losing a position does not by itself bring paragraph (e) into play.

An exam stem that ends with a lawyer losing a job therefore tests one question: why did the lawyer lose it? The same job loss triggers the duty when the facts connect it to the lawyer's own reporting and leaves the duty dormant when the facts point to an unrelated cause.

Paragraph (e) leaves the means to the lawyer's reasonable judgment, because the result is what counts: the highest authority, which for a corporation is typically the board of directors, must actually learn of the departure.⁶ Because the notice goes to the organization's own governing body, it stays inside the client and raises no confidentiality problem. The organization is the client, the duty of confidentiality is owed to the client, and the board is the highest authority that can act for the client.⁷ The paragraph gives the lawyer no permission to go outside the organization. That step stays governed by paragraph (c) and its conditions.

The protection matters most to the in-house lawyer. An outside firm that is dismissed loses one client among many, but the lawyer employed by the organization loses the only client and the livelihood in a single act. The officer who can order that result is often the officer whose conduct the lawyer has just reported. The pressure to stay quiet is therefore strongest on the lawyer with the most to lose, and a duty that outlasts the job is the part of the rule that a firing cannot defeat. A later section takes up how Rule 1.13 applies to house counsel more generally.