ABA-516
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| (MAJORITY: lawyers may decline to take a new matter for “almost any reason,” and may terminate a representation under ABA Model Rule 1.16(b) -- which contains both mandatory and permissive grounds for termination; under ABA Model Rule 1.16 (b)(7) lawyers may withdraw from a representation at any time as long as there is no “material adverse effect on the interests of the client“ in that matter –- such as if the withdrawal “will significantly impede the forward progress of the matter, significantly increase the cost of the matter and/or significantly jeopardize the client’s ability to accomplish the objectives of the representation;” a lawyer’s withdrawal is unlikely to have such a “material adverse effect” if: (1) “the representation has barely gotten off the ground;” (2) “co-counsel can successfully complete the remaining work”; (3) the lawyer’s work “is substantially completed“ and some other lawyer can handle the completion; (4) “there is no ongoing or imminent [“impending”] matter at the time;” although some courts prohibit lawyers from dropping a client like a “hot potato“ and then taking a matter adverse to the now-former client, “some courts recognize that the principle is not absolute” –- for example, if the lawyer’s dropped representation is “sporadic, non-litigious and unrelated to the issues” in the new adverse matter; the “hot potato“ principle is not based on the ethics rules (in which “the lawyer’s motivation is not relevant”) but instead is “an extension of the [“judicial”] common law duty of loyalty” in which courts “treat the lawyer’s withdrawal as if it did not occur;” DISSENT: “we fear [that the majority’s analysis] will prove more harmful than helpful to lawyers,” because: (1) it may discourage lawyers from “transform[ing] current clients into former clients” by closing files, thus freeing the lawyers to take matters adverse to the now-former clients; (2) it “fails to address the breadth” of “hot potato” caselaw, and whether dropping a client “for the purpose of turning around and filing suit against it … could itself qualify as an act inflicting [an ABA Model Rule 1.16 (b)(1)] material adverse effect” on the dropped client; (3) it fails to adequately address ABA Model Rule 1.16 (a)(1)’s mandatory withdrawal rule under the “thrust upon exception to the hot potato doctrine; (4) it “fails to offer guidance for transactional lawyers”) |