These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 36 - Withdrawal from Representations
LEO NumTopicsSummaryDate
1688

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

[WITHDRAWN] A client suing a former employer receives (from a former colleague at the company) a letter to the employer from its lawyer. The client gives a copy of the letter to the client's lawyer, who does not read it but instead seals it in an envelope. The client asks the lawyer to destroy the letter, because the client is worried that the former colleague will be punished if the letter is disclosed. The Bar holds that: the existence and contents of the letter constitute a client "secret"; the lawyer is not required to read the letter, because the "zealous representation" duty is outweighed by the client's instructions to destroy the letter; the lawyer is under no obligation to disclose the letter's existence because there is no "ongoing client crime or fraud involved;" the lawyer need not provide a copy of the letter to the employer (unless there is an outstanding discovery request, in which case the lawyer should object to the request but comply with any order to produce the letter); the lawyer need not withdraw from representing the client. [Although it may not change the result of this LEO, the word "zealous" does not appear in the Rule themselves.]12/9/1996
1005

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36-Withdrawal from Representations

44-Conflicts - Miscellaneous

A court-appointed lawyer has an ethical duty to file post-conviction motions requested by the client (unless they are ill-founded or the lawyer withdraws) because the Virginia statute governing court-appointed lawyers indicates that the duty of representation includes appeals. 11/24/1987
0525

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36-Withdrawal from Representations

48-Criminal Defense Lawyers

A court-appointed lawyer is not obligated to appeal a criminal conviction beyond the Supreme Court of Virginia, but must advise the client of deadlines and offer to make information available if the client wishes to appeal.9/13/1983
1530

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

36-Withdrawal from Representations

44-Conflicts - Miscellaneous

48-Criminal Defense Lawyers

A court-appointed lawyer representing a criminal in an appeal refused to file a motion the lawyer considers frivolous, and withdrew from the representation. Although normally a lawyer would have a duty to proceed with post-trial remedies (unless the lawyer may withdraw without prejudice), "that duty has been displaced by his ethical duty not to file unwarranted or frivolous motions."5/11/1993
0965

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

36-Withdrawal from Representations

A court-appointed lawyer who is offered money by the client to sue the client's former lawyer (which apparently is a criminal act) may avoid violating the criminal law by advising the client of the implications of his offer and not accepting any money. Court-appointed lawyers should seek to withdraw only for compelling reasons, which do not include dislike of the subject matter. 8/24/1987
1558

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16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

36-Withdrawal from Representations

48-Criminal Defense Lawyers

A criminal defense lawyer learning that the client claims that the lawyer pressured the client into a plea of guilty against the client's wishes has a conflict with the client that cannot be cured with consent. The lawyer should move to withdraw, but "would be bound to continue the representation" if the court denies the motion. Until the lawyer withdraws, the lawyer must fully protect the client and therefore (presumably) may have to advise the client about the possibility of withdrawing the guilty plea. [Overruled to the extent that a new state law requires a lawyer to continue representing a criminal defendant in such circumstances, explained in LEO 1817.]10/20/1993
1817

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16-Lawyer's Personal Interests

34-Limiting Liability to Clients

36-Withdrawal from Representations

48-Criminal Defense Lawyers

A criminal defense lawyer who has failed to properly perfect an appeal must (under the duty to communicate material facts) "notify the client of the dismissal of the appeal, the reasons for the dismissal and what rights or recourse the client has under those circumstances" (which "would include advising the client of the right to file a petition for a writ of habeas corpus alleging ineffective assistance of counsel; or a claim for legal malpractice based upon the lawyer's act or omission"). Although this situation obviously involves the lawyer's own interests (which might otherwise prevent the lawyer from proceeding on the client's behalf), new legislation requires the lawyer to assist the client in preparing and filing an affidavit explaining the lawyer's error. To the extent that this new statute requires a continuing representation (thus trumping the ethics rules), it overrules the holdings of Virginia LEO 1122 and 1558.8/17/2005
1766

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8-Bills and Fees

36-Withdrawal from Representations

A former federal worker hired a lawyer on an hourly basis to pursue an administrative disability retirement benefit case, but later used another lawyer under a contingency arrangement. The client fired the second lawyer after successfully obtaining a lump sum payment and a lifetime monthly annuity from the government, but before all of the necessary paperwork was completed. The Bar indicates that the propriety of the lawyer's conduct depends on the facts. Even if the client agrees, a lawyer may not charge an unreasonable fee. A contingent fee arrangement is appropriate if there is an "actual risk of nonpayment and a res from which the fee can be paid." A client and lawyer may enter into a "mixed" contingent fee arrangement in which the lawyer combines an hourly rate with a percentage of the res if successful. A lawyer may sue a former client for unpaid fees, but may not seek a larger fee if the client challenges the original fee request (if there is no basis for the increase). A lawyer fired before completing a contingent fee case may only recover in quantum meruit (the Bar indicates that a trier of fact must determine if that general rule applies to this situation.9/25/2002
ABA-384

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35-Threatening Criminal and Disciplinary Action

36-Withdrawal from Representations

A lawyer against whom a disciplinary charge has been made does not necessarily have to withdraw from the representation that generated the complaint, and the lawyer may not withdraw without the client's consent if the client would be prejudiced by the withdrawal. 7/5/1994
1631

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6-Lawyers Paid by Third Party

17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

73-Family Law Lawyers

A lawyer being paid by a serviceman's parents to represent him in a divorce matter nevertheless owes a duty to the serviceman instead of the parents. When the serviceman filed a bankruptcy petition that seems inconsistent with the lawyer's understanding of who is paying the lawyer's bill, the lawyer must attempt to communicate directly with the serviceman or his bankruptcy counsel to obtain the true facts. The lawyer need not withdraw yet, but depending on what the lawyer discovers may be obligated to withdraw from representing the client. If so, the lawyer must take reasonable steps "for the continued protection of client's interests." 2/7/1995
0201

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36-Withdrawal from Representations

A lawyer may refuse to appeal the results of a competency hearing. 11/12/1969
1697

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25-Dealing with Unrepresented People

31-Protecting and Disclosing Confidences and Secrets

32-Lawyers Acting in Other Roles (Miscellaneous)

36-Withdrawal from Representations

44-Conflicts - Miscellaneous

73-Family Law Lawyers

A lawyer may represent the husband in a domestic assault case although the lawyer's partner has been acquainted with the victim's family for many years and acquired confidences about the victim's family, because the family never sought or received legal advice from the partner and none of the discussions occurred in the lawyer's "professional capacity as a lawyer, to which an expectation of confidentiality might attach, as opposed to conversations between friends." The lawyer representing the husband may nevertheless withdraw as long as there would be no material prejudice to the husband and the lawyer receives court approval (if there was a pending case).6/24/1997
0897

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36-Withdrawal from Representations

A lawyer may withdraw from a representation if the lawyer is unable to locate the client and the lawyer takes reasonable steps to protect the client's interests. 4/1/1987
0908

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36-Withdrawal from Representations

A lawyer may withdraw from representing a client found mentally incompetent, even if the client wants to appeal the commitment order, as long as the lawyer believes that existing law supports the court's order, but the lawyer must prosecute the appeal if the court denies the withdrawal motion. [Rule 1.14 provides guidance to lawyers representing clients under a disability.]4/1/1987
0842

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8-Bills and Fees

36-Withdrawal from Representations

A lawyer may withdraw from representing a client who does not pay the lawyer's bills. 9/23/1986
0721

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36-Withdrawal from Representations

A lawyer may withdraw from representing a client who reneges on a settlement offer that the lawyer had communicated to the opposing party. 8/30/1985
1325

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8-Bills and Fees

36-Withdrawal from Representations

71-Representing Corporations

A lawyer may withdraw from representing a corporation which refuses to pay its bills, defames the lawyer and threatens the lawyer with physical danger. The lawyer may then sue the former client for past-due bills. [The lawyer requesting the opinion practices in another country. The choice of law issues are now governed by Rule 8.5 -- although the conclusion seems consistent with every state's ethics rules.]2/27/1990
0559

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14-Ownership of Files and Attorney Lien Issues

36-Withdrawal from Representations

A lawyer may withdraw from representing a personal injury client before filing a lawsuit as long as the lawyer advises the client of: the withdrawal; the applicable statute of limitations; the necessity of the client hiring another lawyer; and the client's entitlement to the return of papers and property. (4/10/84) [Rule 1.16(e) governs a lawyer's duty to provide files to a former client.]4/10/1984
0901

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4-Witness-Advocate Rule

36-Withdrawal from Representations

73-Family Law Lawyers

A lawyer must withdraw from a divorce matter when the lawyer was a party to a telephone conversation (involving both clients and both lawyers) about a settlement agreement over which the parties now disagree. 3/11/1987
0336

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25-Dealing with Unrepresented People

32-Lawyers Acting in Other Roles (Miscellaneous)

36-Withdrawal from Representations

58-Real Estate Lawyers

A lawyer named as trustee for the benefit of a non-represented seller must resign if the seller later requests the lawyer to do so. 9/20/1979
ABA-375

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31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

A lawyer representing a bank in an audit may not lie to the auditor but is not required to disclose problems the lawyer uncovers. If the client lies to the auditor in the lawyer's presence, the lawyer is not required to immediately conduct a "noisy withdrawal", but may ultimately be obligated to resign. If the lawyer learns that the client will be using the lawyer's work product to perpetrate a fraud, the lawyer must disassociate himself from the work product. 8/6/1993
1731

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

17-Fraud on the Tribunal

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

48-Criminal Defense Lawyers

56-Duty to Advise the Court

A lawyer representing a client (in a criminal matter in which sentencing is pending) who admits that she just gave police a false identification (using her girlfriend's driver's license) while being arrested for driving while intoxicated: may not reveal the client's fraud on the third party (because it does not involve the subject matter of the representation); cannot represent (even with consent) both the client and her girlfriend because of the "inherent and direct conflict" between them; must abide by the client's decision if she is determined to remain silent about the incident on the court date for the driving arrest; may continue to represent the client in the sentencing phase of the original criminal matter but "must be careful not to mislead the court in any statements"; may not invite the court in the sentencing hearing to ask questions that would elicit information about the driving arrest incident; may not withdraw from representing the client in the underlying criminal matter because it would prejudice the client (by prompting the court to ask about the withdrawal); must advise the client of the risk that the lawyer might be obligated to reveal the driving arrest incident if asked direct questions by the court at the sentencing hearing.6/29/1999
0435

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31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

A lawyer representing a prisoner pro bono who determines that the case is meritless and who seeks court permission to withdraw may not advise the court of the lawyer's conclusions about the case even if it means the court will not allow the lawyer to withdraw. 11/3/1981
0261

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36-Withdrawal from Representations

A lawyer representing another lawyer in disciplinary proceedings may continue the representation even after being elected to Bar Council if the court has refused permission to withdraw from the representation. [This was overruled by the Disciplinary Rules.]6/5/1975
0986

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2-Adversity to Former Clients

3-Multiple Representations on the Same Matter

36-Withdrawal from Representations

48-Criminal Defense Lawyers

51-Government Attorneys

77-Communicating with an Individual Adversary

A lawyer represents two criminal co-defendants. Just before trial, the Commonwealth's Attorney offers to plea bargain with one if that defendant will testify against the other. The lawyer drops the representation of the defendant receiving the offer. The lawyer later learns that the former client intends to testify against the continuing client and has also shared the lawyer's work product with the Commonwealth's Attorney. Although the continuing client insists that the lawyer continue the representation, the lawyer must withdraw. The Bar found nothing wrong with the Commonwealth's Attorney interviewing the former client (before the client has a new lawyer) and obtaining the former lawyer's work product from the former client. [This LEO was overruled by LEO 1702, which would prohibit the lawyer from obtaining or learning the substance of the work product.]10/27/1987
0305

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

36-Withdrawal from Representations

A lawyer should withdraw from representing a client seeking to avoid service of process if the client does not follow the lawyer's advice to accept service of process. 11/27/1978
1088

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36-Withdrawal from Representations

A lawyer unable to re-establish contact with a client whose claim is about to expire may not simply withdraw, but may file an action before the statute of limitations has run and simultaneously move to withdraw. 6/8/1988
0872

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36-Withdrawal from Representations

A lawyer who cannot find a client whose claim is about to expire may file an action and simultaneously move to withdraw. 2/2/1987
1173

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36-Withdrawal from Representations

A lawyer who has been unsuccessful in locating a former client whose claim is about to expire should file an action to prevent the statute of limitations from running and simultaneously move to withdraw. 10/24/1988
ABA-366

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31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

A lawyer who knows or believes that the lawyer's services are being used to perpetrate a fraud must withdraw and may disaffirm documents the lawyer has prepared, even if such a "noisy withdrawal" might reveal client confidences. A lawyer would be obligated to take these steps even if the lawyer is fired before having the chance to withdraw. The lawyer may (but does not necessarily have to) withdraw -- without a "noisy withdrawal" -- if the lawyer's services have been used without the lawyer's knowledge to commit a fraud that is now completed. 8/8/1992
1687

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

A lawyer who suspects that a client has committed fraud before the representation may "accept at face value" that the client's story is "bona fide" unless the lawyer "knows or, in the exercise of due diligence upon reasonable inquiry during the attorney/client relationship, the attorney should know of information to the contrary." Thus, the lawyer must maintain the client's confidences and secrets and has no duty to "confront the client and inquire directly about the client's prior conduct." However, nothing prohibits the lawyer from "investigating the matter further." If the lawyer "believes that the fraud is obvious" even though the lawyer never receives a confession from the client, the lawyer should "move to voluntarily withdraw" at a time "that does not materially prejudice the client." 9/23/1996
ABA-404

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36-Withdrawal from Representations

39-Miscellaneous

43-Conflicts of Interest - Miscellaneous

A lawyer whose client has become incompetent may take protective action, including petitioning for the appointment of a guardian (although the lawyer may not represent a third party in seeking a guardian). The appointment of a guardian should be a last resort, and the lawyer may withdraw only if it will not prejudice the client. 8/2/1996
0203

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36-Withdrawal from Representations

A legal aid lawyer may withdraw from representing a legal aid client if from the beginning the representation did not meet legal aid guidelines. 2/3/1970
1785

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1-Adversity to Current Clients

2-Adversity to Former Clients

9-Government Lawyer Conflicts

18-Consent and Prospective Waivers

21-Reporting Another Lawyer's Unethical Conduct

36-Withdrawal from Representations

A part-time County Attorney may not represent the Board of Supervisors in a lawsuit against the county's Board of Zoning Appeals ("BZA") and a corporation which had obtained a variance from the BZA; explaining that: (1) determining whether the BZA is a current client of the County Attorney is a factual issue, but a lawyer's duty of communication and duty to protect the client's interest when the relationship ends "combine to place the onus of clarity regarding the beginning and the end of the representation on the attorney and not the client; if a client's belief that a representation is ongoing is reasonable under the circumstances, and the attorney does nothing to indicate that the relationship has terminated, an attorney may not be able to treat that client as a 'former' client for conflicts of interest analysis;" (2) the BZA is certainly a former client of the County Attorney in a substantially related matter, because the BZA received advice from the County Attorney about the public notice for the variance that is at issue in the current lawsuit against the BZA (the variance was therefore "the subject of each representation"); (3) the ethics rule prohibiting adversity to a former client "contains no notion of some parties being less real than other parties," so the County Attorney cannot avoid the conflicts rule by arguing that the corporation is the main interested party in the current litigation, and that the BZA is not a "real" party for conflicts purposes; (4) the County Attorney faced a conflict even in advising the BZA that it did not need a separate lawyer (because the Board of Supervisors would have an interest in having the BZA unrepresented); (5) the BZA could consent to the County Attorney's adversity if it was found to be a former client, but Rule 1.7 Comment [7] "prohibits representation of opposing parties in litigation," meaning that even the BZA's consent would not cure the conflict if the BZA is found to be a current client (because the County Attorney would be simultaneously representing opposite sides in the same matter); (6) determining whether the corporation's lawyer must file an ethics charge against the County Attorney is a "fact-specific judgment call" if such a duty exists, the corporation's lawyer must report the misconduct "without any unnecessary delay" [overruling any inconsistent holding in Virginia LEO 1209]. [Comment [21b] to Rule 1.6 indicates that a lawyer obligated to report another lawyer's misconduct during litigation can wait until the end of the litigation if reporting the misconduct earlier would harm the client's interests].11/14/2003
1523

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16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

36-Withdrawal from Representations

44-Conflicts - Miscellaneous

A plaintiff in a dog bite case hired a lawyer who is a "casual acquaintance" of the defendant. The lawyer's casual relationship with the defendant is a "personal interest" that may create a conflict. The "impact of such personal interests may be measured along a continuum, with the least significant interests representing only a de minimus conflict which does not require disclosure to or consent from the client." Here, any conflict was cured by the client's consent. The client also consented to the lawyer's limiting the representation to non-litigation matters only, with the understanding that the lawyer would withdraw from the case if litigation became necessary. 5/11/1993
0239

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36-Withdrawal from Representations

48-Criminal Defense Lawyers

Except for compelling reasons, a lawyer may not refuse a judge's request to represent an indigent criminal defendant.3/22/1974
1044

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36-Withdrawal from Representations

59-Disbarred and Suspended Lawyers

Former partners of a disbarred lawyer may use an adjusting company that employs the disbarred lawyer as an adjuster as long as the disbarred lawyer does not practice law or hold himself or herself out as a lawyer. 3/1/1988
0974

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8-Bills and Fees

16-Lawyer's Personal Interests

36-Withdrawal from Representations

If a lawyer is granted permission to withdraw as counsel, the lawyer may sue the former client for fees "should it be determined that a gross imposition has been made upon the lawyer's practice due to the client's failure to pay the fee" [The lawyer should be free to sue the former client for fees under normal contract rules; the "gross imposition" standard should apply only if the lawyer wants to sue a current client for unpaid fees.] 10/9/1987
0841

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36-Withdrawal from Representations

If the statute of limitations is about to run on a claim for a client whom the lawyer cannot find, the lawyer may file the action and simultaneously move to withdraw. 10/9/1986
ABA-447

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32-Lawyers Acting in Other Roles (Miscellaneous)

36-Withdrawal from Representations

68-Lawyers Acting as Mediators

Lawyers may ethically participate in a "collaborative law process," which involves adverse parties and their lawyers "commit[ing] to work cooperatively to reach a settlement," and "structur[ing] a mutually acceptable written resolution of all issues without court involvement," which is then "submitted to the court as a final decree." The so-called "four-way" agreement normally includes a provision requiring the lawyers to withdraw from representing their clients if the collaborative effort fails. Such an agreement is an acceptable limitation on the scope of representation under Model Rule 1.2(c), and does not involve a non-waivable conflict. [as the Colorado Bar held in Colorado LEO 115]. (2/24/07)]8/9/2007
1886

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21-Reporting Another Lawyer's Unethical Conduct

36-Withdrawal from Representations

45-Law Firms - Miscellaneous

Lawyers must report an impaired colleague if the colleague engages in sufficiently serious misconduct (under Rule 8.3), but also must "take precautionary measures before" a colleague's impairment reaches that level; such lawyers: (1) must "take reasonable steps to prevent the impaired from violating the Rules" (including considering whether the lawyer must withdraw from a representation under Rule 1.16); (2) may be able to "work around or accommodate" the impairment by reducing the impaired colleague's workload, arranging for a supervisor until the impairment dissipates, restrict the impaired colleague's scope of practice, etc.; (3) should suggest that the impaired colleague seek appropriate help. If the impaired colleague has committed sufficiently egregious misconduct that requires reporting under Rule 8.3, arranging for the impaired lawyer to participate with Lawyers Helping Lawyers does not eliminate the reporting obligation. [Approved by the Supreme Court of Virginia 12/15/16]12/15/2016
1591

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14-Ownership of Files and Attorney Lien Issues

36-Withdrawal from Representations

40-Trust Accounts

The Code permits a lawyer to withdraw from representing a client and to exert a common law possessory lien on funds being held in trust for the client. 6/14/1994
1690

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14-Ownership of Files and Attorney Lien Issues

36-Withdrawal from Representations

This is a Compendium Opinion on a lawyer's obligation to surrender files to a client who has not paid the lawyer's fee. The Bar indicates that the "ethical mandate [to avoid prejudicing the client] virtually displaces the common law retaining lien" because the lien "almost invariably will cause (and is designed to cause) prejudice to the former client's interests." Therefore, "assertion of the lien is not ethically permissible . . . whenever doing so will materially prejudice the former client's interests."A lawyer may not charge a client for copying the files upon termination of the relationship even if the lawyer supplied the documents during the course of the representation. The Bar also rejects the notion that the client is entitled only to "finished work product," instead holding that "workproduct in every form should be surrendered if withholding it would materially prejudice the former client's interests." However, the Bar indicates that "more is required to establish prejudice with respect to lawyer workproduct than to client-provided papers." The Bar holds that a lawyer may not condition release of the documents on the client signing a receipt.The sort of "delivery" required by the Rules may include sending the documents to the client, making them available for pick-up or allowing the client access to the documents at the lawyer's office.Before destroying any old client files, the lawyer should search out "original documents of the client" and offer to return the documents after explaining their significance (if necessary). This procedure will be more effective if implemented soon after the representation ends rather than years later. The lawyer should be mindful of the ongoing duty of confidentiality in deciding how to destroy old files. [Rule 1.16(e) now governs a lawyer's duty to provide files to a former client.]6/5/1997
0514

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36-Withdrawal from Representations

48-Criminal Defense Lawyers

When the court refuses permission to withdraw, a criminal defense lawyer may not withdraw from representing a client even if the client "specifically and unequivocally requested" that the lawyer withdraw.5/2/1983

Copyright 2000, Thomas E. Spahn