Emergency Ethics 101 A Model Rules Analysis. Cara E. Greene, Esq. March In conjunction with the panel: The Ethics of the Disruptive Client

Transcription

1 , Esq. March 2017 In conjunction with the panel: The Ethics of the Disruptive Client Cara E. Green, Esq. Jeffrey Patton, Esq. Sonya Richburg, Esq. Brenda Wills-Sutton, Esq. American Bar Association, Ethics and Professional Responsibility Committee March 23-25, 2017

2 TABLES OF CONTENTS I. Overview... 2 II. Common Ethics Issues... 2 a. Conflict of Interest: Current Clients... 2 i. Hypothetical... 2 ii. ABA Model Rules of Professional Conduct Rule iii. Analysis:... 2 Conflicts arising from differing interests... 2 Conflicts related to confidential information... 5 Withdrawal... 6 b. Spoliation... 6 i. Hypothetical... 6 ii. ABA Model Rules of Professional Conduct Rule iii. Analysis:... 6 c. Dishonesty... 7 i. Hypothetical... 7 ii. ABA Model Rules of Professional Conduct Rule 3.3:... 7 iii. Analysis:... 8 d. Inadvertent Disclosure i. Hypothetical: ii. ABA Model Rules of Professional Conduct Rule 4.4(b): iii. Analysis e. Incapacitated or Mentally Ill Client i. Hypothetical ii. ABA Model Rules of Professional Conduct Rule 1.14: iii. Analysis: f. Disputes with Clients i. Hypothetical: ii. ABA Model Rules of Professional Conduct Rule 1.16(c): iii. Analysis: Using Retainer Agreements to Facilitate Permissive Withdrawal III. Conclusion... 15

3 I. Overview The repercussions of stepping on an ethical landmine can be severe disruption, disqualification, sanctions, the end of the attorney-client relationship, and prejudice to the client, to name a few. The landmines include, among other things, conflicts that arise in the course of representation; spoliation; untruthful clients; inadvertent privilege waivers; incapacitated clients; and seemingly irreconcilable differences between lawyer and client that necessitate withdrawal from the attorney relationship. This paper considers these landmines and the applicable ethics rules, and analyzes how an attorney might handle the situation. II. Common Ethics Issues a. Conflict of Interest: Current Clients i. Hypothetical: You represent the employer in a retaliation suit. A senior level manager is noticed as a fact witness for a deposition and you undertake his representation as well. In the course of his deposition, the senior level manager testifies that he had knowledge of the employee s complaints of discrimination and aided the bad actor in retaliating against employee. Employee amends the complaint to assert individual claims against the Senior Level Manager. ii. American Bar Association Model Rules of Professional Conduct Rule 1.7: (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. iii. Analysis: Conflicts arising from differing interests Potential or actual conflicts of interest are one of the most common ethical issues to arise in joint representation. Clients whose interests are March 25,

4 initially aligned may find that their interests diverge as the matter proceeds. Under the ABA Model Rules of Professional Conduct (the Rules ) Rule 1.7(a)(1), a concurrent conflict of interest occurs when the representation of one client will be directly adverse to another client. In other words, if representing one client would materially affect or pose a significant risk in a lawyer s ability to represent another client, then the lawyer may not represent both clients. 1 Comment 8 to Rule 1.7 explains when a lawyer s representation may be materially limited: Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer's ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests. For example, a lawyer asked to represent several individuals seeking to form a joint venture is likely to be materially limited in the lawyer's ability to recommend or advocate all possible positions that each might take because of the lawyer's duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. 2 Under Rule 1.7, however, even where there are conflicting interests, a lawyer may continue to represent the clients if informed consent is received from the all of the clients. Rule 1.7 outlines certain conditions that must be met before a lawyer may proceed with representing multiple clients in the same transaction or matter: each affected client must give informed consent, confirmed in writing. Under Rule 1.0: Informed consent denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about 1 Gianfranco A. Pietrafesa, One Lawyer Representing Multiple Clients Sitting on the Same Side of the Table, New Jersey Lawyer Magazine, June 2006 at 30, ABA Model Rules of Prof l Conduct R. 1.7, Comment 8. March 25,

5 the material risks of and reasonably available alternatives to the proposed course of conduct. Since consent must be in writing, it is often included as part of the retainer agreement. Retainer agreements are advisable in every representation (and, indeed, are required under certain circumstances, such as in the case of a contingent fee 3 ), but a retainer agreement is of paramount importance when representing groups of individuals with actual or potential conflicts of interest. Rule 1.7 also permits a lawyer, in appropriate circumstances, to obtain consent from a client to waive potential future conflicts of interest. 4 Comment 22 to Rule 1.7 expressly permits attorneys to seek waivers for future conflicts, where such consent is sufficiently informed. 5 More specifically, the Comment states: The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. 6 In the hypothetical above, the employer and employee s interests are potentially at conflict, as the employer may seek to distance itself from the manager or may seek to fire him, and the manager s interests are in preserving his employment or leverage with the company. An attorney in this situation may find herself facing a conflict of interest, as she cannot fully represent the interest of one client, without compromising the interest of the other. 3 ABA Model Rules of Prof l Conduct R. 1.5(c). 4 See ABA Comm. On Ethics & Prof l Responsibility, Formal Op (2005). 5 See ABA Model Rules of Prof l Conduct R. 1.7, Comment Id. March 25,

6 Conflicts related to confidential information Apart from potentially differing objectives and related conflicts, a conflict may arise related to the treatment of confidential information. Rule 1.6(a) provides that A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). When a lawyer is engaged in joint representation and receives material confidential information from Client A, who asks the lawyer to withhold that information from Client B, that lawyer is confronted with a conflict. 7 Client A expects that the lawyer will keep information obtained during the course of the representation confidential. 8 At the same time, the lawyer is required by Rule 1.4(b) to provide information to Client B to the extent reasonably necessary to permit the client to make informed decisions regarding the representation 9 Thus, when a lawyer represents multiple clients in the same or related matters, the obligation of confidentiality to each sometimes may conflict with the obligation of disclosure to each. An attorney should address with clients from the onset of a joint representation how confidential information will be handled and shared among the clients. Comment 31 to Rule 1.7 states in part: In limited circumstances, it may be appropriate for the lawyer to proceed with the representation when the clients have agreed, after being properly informed, that the lawyer will keep certain information confidential. For example, the lawyer may reasonably conclude that failure to disclose one client's trade secrets to another client will not adversely affect representation involving a joint venture between the clients and agree to keep that information confidential with the informed consent of both clients. 10 As with conflict waivers, the agreement regarding the use of confidential information should be reduced to writing, typically as part of the retainer agreement. 7 See Gray T. Culbreath, Ethical Issues Encountered in Multi-Claimant Litigation, (last visited Feb. 25, 2014). 8 See ABA Rules of Prof l Conduct R ABA Comm. On Ethics & Prof l Responsibility, Formal Op (2008) (discussing confidentiality when a lawyer represents multiple clients in the same or related matters). 10 ABA Rules of Prof l Conduct R. 1.7, Comment 31. March 25,

7 b. Spoliation Withdrawal If the conflict cannot be waived or one party is not willing to waive the conflict, then the attorney may be forced to withdraw as counsel to one or both parties. Mandatory withdrawal is required under Rule 1.16(a)(1) when conflicts arise during the course of concurrent representation and the conflict either cannot be waived or one party will not agree to waive the conflict. Even after withdrawing, an attorney is obligated to protect the former client s interest by avoiding foreseeable prejudice to the rights of the client. Rule 1.16(e) stated: 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. i. Hypothetical: In the course of discovery, you discover that a shop steward who was involved in the internal grievance process has wiped his iphone, which contained discoverable text and voic messages. ii. ABA Rules of Professional Conduct Rule 3.4: A lawyer shall not: (a) unlawfully obstruct another party' s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.... iii. Analysis: It is settled under federal law that a client must preserve evidence if they have notice of a pending litigation or future litigation for which the evidence will be needed, or if required to do so by regulations. 11 Essentially, a party must preserve what it knows or reasonably should know is relevant in the action. It is counsel s role to determine the what, who, and how of preservation and to ensure that the client complies with its preservation requirements. Rule 1.1 requires that attorneys provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for 11 See Pension Comm. of Univ. of Montreal Pension Plan v Banc of Am. Sec., 685 F. Supp. 2d 456, 473 (S.D.N.Y. 2010); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003). March 25,

8 c. Dishonesty the representation. 12 In order to satisfy this competency requirement in advising clients with respect to litigation holds, attorneys must undertake efforts, at a minimum, to understand the relevant issues, key players, repositories of electronically stored information, and internal systems. [L]awyers will not only need extensive knowledge of their clients' electronic records, but will also have to be actively involved in the maintenance of records and the preservation of evidence that could be discoverable at litigation. 13 Further, [c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched. 14 It is not unusual for an attorney to delegate the execution of a litigation hold to others for instance, to corporate HR or to more junior associates or paralegals. But attorneys should be mindful of their ethical obligations under Rules 5.1 and 5.3 to ensure that those whom they are supervising are complying with the ethics rules as well, including the duty of competency under Rule 1.1, which will necessitate adequate training and ongoing supervision. Lest attorneys fear that they will end up in the role of babysitter, the Zubulake court assured that counsel need not supervise every step of the document production process and may rely on their clients in some respects. The court also noted that [a] lawyer cannot be obliged to monitor her client like a parent watching a child and that [a]t the end of the day... the duty to preserve and produce documents rests on the party. 15 i. Hypothetical: You spend significant time preparing your client for her deposition and understanding the scope of her knowledge in the case. In the course of her deposition, she makes a material misstatement of fact she lies. ii. ABA Model Rules of Professional Conduct Rule 3.3: (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer... (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer 12 ABA Model Rule of Prof l Conduct R Zachary Wang, Ethics and Electronic Discovery: New Medium, Same Problems, 75 DEF. COUNSEL J. 328, 330 (2008). 14 Zubulake v. UBS Warburg, 2004 WL (S.D.N.Y. July 20, 2004). 15 Id. March 25,

9 evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. iii. Analysis: When an attorney is aware that his or her client has made a false statement of fact or law, the attorney must first consider the forum in which the false statement was made. On its face, Rule 3.3 prohibits attorneys from making or using false statements to a tribunal. 16 Tribunal is defined broadly under Rule 1.0(m): [t]ribunal denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter. 17 Furthermore, Comment [1] to Rule 3.3 states that the Rule also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal s adjudicative authority, such as a deposition. That Rule 3.3 (or its predecessor rule) applies in discovery has been affirmed by the ABA in Formal Ethics Opinion There is ample evidence that that the word false should be defined broadly to include both intentional and unintentional misstatements. The Restatement of the Law Governing Lawyers Restatement 120(1)(c), provides that [a] lawyer may not... offer testimony or other evidence as to an issue of fact known by the lawyer to be false and must take reasonable remedial measures where a lawyer learns of its falsity. Comment d to 120 states: False testimony includes testimony that a lawyer knows to be false and testimony from a witness who the lawyer knows is only guessing or reciting what the witness had been instructed to say.... [A]lthough a witness who testifies in good faith but contrary to fact lacks the mental state necessary for the crime of perjury, the rule of the Section nevertheless applies to a lawyer who knows that such testimony is false. (emphasis added). Other jurisdictions considering variations of Rule 3.3 apply a similarly broad interpretation of False. See, e.g., Morton Bldg., Inc. v. Redeeming Word of Life Church, 835 So.2d 685, 691 (La. App. 1st Cir. 16 Rule 8.4 more generally prohibits an attorney from engaging in conduct involving dishonesty. 17 ABA Model Rules of Prof l Conduct R See ABA Formal Opinion (1993). March 25,

10 2002) (citing Washington v. Lee Tractor Co, Inc., 526 So.2d 447, 449 (La. App. 5th Cir.), writ denied, 532 So.2d 131 (La. 1998)) ( [F]ailure to correct false evidence, even if originally offered in good faith, violates Rule 3.3 of the Rules of Professional Conduct. ); Washington State Bar Opinion 1173 (1988) (if the proceeding was still pending, the lawyer would have had to disclose his client s mistaken, but not fraudulent, failure to provide certain dates and medical treatments in answers to interrogatories). See also Mehta, What Remedial Measures Can A Lawyer Take to Correct False Statements Under New York s Ethical Rules? 12 th Annual AILA New York Chapter Immigration Law Symposium Handbook (2009 ed.); Hazard and Hodes, The Law of Lawyering, When a lawyer knows that a material false statement has been made, whether intentionally or unintentionally, to a tribunal, the lawyer has an affirmative duty to correct the false statement. 19 Notably, while false statements of any kind are prohibited under the Rule, only false statements that are material need be corrected. Rule 3.3 does not specify what an attorney must do in such a situation. Instead, the Rule states that the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. Remedial measures may take many forms: in the context of a deposition, for instance, the false statement may be remediated through redirect at the conclusion of the deposition or by means of an errata sheet or supplemental declaration. Rule 3.3 does not include any time restrictions; thus, the duty applies even when no one is continuing to rely on the false statement. Comment 10 to Rule 3.3 provides some helpful guidance: 19 ABA Model Rules of Prof l Conduct R Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer s client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either during the lawyer s direct examination or in response to crossexamination by the opposing lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate's proper course is to remonstrate with the client confidentially, advise the client of the lawyer s duty of candor to the tribunal and seek the client s cooperation with respect to the withdrawal or correction of the false March 25,

11 statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing. As the comment notes, if the client refuses to correct the false statement, an attorney must still undertake remedial measures, even though it may require disclosure of confidential information. d. Inadvertent Disclosure i. Hypothetical: The case involves substantial ESI production. In the course of a deposition of a company official, Plaintiff uses as an exhibit an between the senior company official and the in-house attorney related to the matter. ii. ABA Model Rules of Professional Conduct Rule 4.4(b): A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. iii. Analysis Under the Rules, an attorney who receives a document that she believes was inadvertently sent must notify the sender. As the New York City Bar Association noted, a lawyer who receives such a document must promptly notify the sender (in addition to identifying and following applicable substantive law), but has no other obligations under the New York Rules of Professional Conduct with respect to the retention, return, destruction, review or use of the document or its contents. 20 For cases in federal court, Federal Rule of Civil Procedure 26(b)(5)(B) specifically addresses the issue of inadvertent disclosure and requires an attorney who has received an inadvertent disclosure to (1) promptly return, sequester or destroy the specified information and any 20 New York City Bar Association, Formal Opinion Rule 4.4(b) of the New York Rules of Professional Conduct substantially mirrors Rule 4.4(b) of the ABA Model Rules of Professional Conduct. March 25,

12 copies ; (2) not use or disclose the information until the claim [of inadvertent disclosure of privileged information] is resolved ; and (3) take reasonable steps to retrieve the information. 21 Rule 4.4. and F.R.C.P. 26 apply only to documents that are inadvertently sent. Documents produced during in the course of discovery are produced with some intentionality, so it is arguable that Rule 4.4 would not apply at all. Under that scenario, the receiving party is not obligated to notify the sender or do anything else with the document, and there is no prohibition against using the document. As a result, many attorneys now enter into a stipulation at the beginning of discovery whereby both sides assert and maintain privilege as to attorney-client communications and require the return of any such documents produced in the course of discovery prior to reading them and such stipulations have been upheld by the courts. 22 Even where there is no such stipulation, the producing attorney may have avenues of recourse that will minimize prejudice to the client. If the matter is pending in Federal Court, Fed. R. Evid. 502(b) applies, which states that a disclosure of attorney-client information is not considered a waiver of the privilege if: (a) the disclosure is inadvertent; (b) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (c) the holder promptly took reasonable steps to rectify the error. e. Incapacitated or Mentally Ill Client i. Hypothetical: As the case progresses, litigation takes its toll on your client and you begin observing symptoms of mental illness. One day, your client comes into your office unannounced and seems paranoid and delusional. ii. ABA Model Rules of Professional Conduct Rule 1.14: (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including 21 Fed. R. Civ. P. 26(b)(5)(B). 22 See, e.g., U.S. Fidelity & Guaranty Co. v. Braspetro Oil Services Co., 2000 WL (S.D.N.Y. June 8, 2000); Prescient Partners L.P. v. Fieldcrest Cannon, Inc., 1997 WL (S.D.N.Y. Nov. 26, 1997). March 25,

13 consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests. ABA Model Rules of Professional Conduct Rule 1.6:... (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm... iii. Analysis: The attorney-client representation is made more difficult when a client is unable to fully participate in his or her representation due to incapacitation. When a client s ability to make reasoned decisions is diminished, an attorney is ethically permitted under Rule 1.14 to take protective action if the client is at risk of substantial physical, financial or other harm and the attorney alone cannot adequately act in the client s own interest. Furthermore, disclosure of confidential information is permitted to the extent necessary to protect the client. The attendant comments provide helpful guidance in applying this Rule. Comment 5 states: If a lawyer reasonably believes that a client is at risk of substantial physical, financial or other harm unless action is taken, and that a normal client-lawyer relationship cannot be maintained as provided in paragraph (a) because the client lacks sufficient capacity to communicate or to make adequately considered decisions in connection with the representation, then paragraph (b) permits the lawyer to take protective measures deemed necessary. Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decisionmaking tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decisionmaking autonomy to the least March 25,

14 extent feasible, maximizing client capacities and respecting the client's family and social connections. 23 Comment 6 provides further guidance: In determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician. 24 Rule 1.14 applies where the client s capacity to make adequately considered decisions in connection with a representation is diminished. Thus, an attorney may not take proactive or protective measures unless it is impacting the representation of the client. What about situations where a client s mental state is not affecting the representation, but is jeopardizing the client s health or life for instance, cases of suicidal tendencies or severe substance abuse? Rule 1.6(b) expressly permits an attorney to act to save the life of a client, stating: A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm... Comment 6 to Rule 1.6 states: f. Disputes with Clients Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. i. Hypothetical: The insurance policy is exhausted, with no end to the litigation in sight. Employer stops paying your legal fees. 23 ABA Model Rules of Prof l Conduct R. 1.14, Comment ABA Model Rules of Prof l Conduct R. 1.14, Comment 6. March 25,

15 ii. ABA Model Rules of Professional Conduct Rule 1.16(bb) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (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; (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; (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. iii. Analysis: Rule 1.16 includes 7 different circumstances in which an attorney may withdraw from representing a client. Importantly, under the Rule, withdrawal is permitted for any reason if it can be accomplished without materially harming the interests of the client. However, under the Rules an attorney may not withdraw from representing a client, however, unless the attorney has secured the necessary permission of the respective tribunal. 25 Courts considering whether to permit withdrawal look to the prejudicial effect the withdrawal would have on the client. 26 For example, in Alter v. Oppenheimer & Co., Inc., two law firms sought to withdraw from representing an individual defendant in a sexual harassment lawsuit after Oppenheimer (the corporate defendant who also was represented by the two law firms) reached a settlement with the plaintiff on the eve of trial. The law firms claimed that the settlement created a conflict between Oppenheimer and the individual defendant, necessitating withdrawal. Alternatively, the law firms claimed that the individual defendant had lost 25 ABA Model Rules of Prof l Conduct R. 1.6(c). 26 See, e.g., Alter v. Oppenheimer & Co., Inc., 2008 WL (N.Y. Sup. Ct. Nov. 20, 2008). March 25,

16 confidence in their ability, making it unreasonably difficult for them to carry out their employment effectively. Ultimately, the court denied the request to withdraw the representation. The court first concluded that there was no conflict between the parties because Oppenheimer was no longer a defendant in the matter. 27 Next, the court found that neither law firm had demonstrated that the attorney-client relationship was irrevocably broken. 28 Finally, the court concluded that permitting withdrawal would have a materially adverse effect on the defendant s ability to vigorously defend himself at trial, given that the motion for withdrawal was made only four days before the trial was scheduled to commence. 29 Using Retainer Agreements to Facilitate Permissive Withdrawal Retainer agreements are a regularly-used vehicle for outlining the circumstances in which an attorney may withdraw as counsel. For instance, a retainer agreement may specify that an attorney may withdraw from representation if, after investigation or consultation with experts, the attorney is convinced that the defendant is not liable. 30 A retainer agreement may also set forth other grounds for terminating the clientattorney relationship, as long as they are consistent with the grounds set forth in Rule 1.16(c). 31 The existence of a retainer agreement specifying certain grounds for terminating the client-attorney relationship m not relieve an attorney of his obligation to seek the court s permission, if necessary. 32 Nor may a retainer agreement mislead the client with regard to the attorney s obligations, including the obligation to continue as counsel in the absence of a permissible ground for withdrawing from the representation. 33 III. Conclusion While the repercussions of stepping on an ethical landmine can be severe, an attorney need not live in perpetual fear of making a misstep. By knowing the ethics rules and understanding how they apply in a given situation, the attorney can proactively manage situations to abide by the rules, while protecting her client s interests. 27 Id. at *5. 28 Id. at *6. 29 Id. 30 See, e.g., N.Y. State Bar Assoc., Comm. on Professional Ethics, Formal Opinion 440 (1976). 31 See, e.g., N.Y. State Bar Assoc., Comm. on Professional Ethics, Formal Opinion 719 (1999). 32 See, e.g., NYSBA Formal Opinion See, e.g., NYSBA Formal Opinion 719. March 25,

17 is a partner in Outten & Golden LLP s New York City office, and represents employees and partners, including attorneys, in their employment and partnership matters. She is past employee-chair of the ABA Labor and Employment Law Section s Ethics and Professional Responsibility Committee, and is co-chair of the Ethics Committee of the Labor and Employment Law Section of the New York State Bar Association. March 25,