bowing out professionally

Bowing Out Professionally

Effective Settlements and How to Ethically Withdraw to

Avoid Malpractice

WithdrawalWithdrawal

Prior to entry of appearance before a Prior to entry of appearance before a tribunal must comply with --tribunal must comply with -- Rule 4-1.16Rule 4-1.16

After entry of appearance must After entry of appearance must comply with –comply with – Rule 4-1.16 andRule 4-1.16 and Any applicable law requiring notice to or Any applicable law requiring notice to or

permission of the tribunalpermission of the tribunal Rule 4-1.16(c)Rule 4-1.16(c)

(c)(c) A lawyer must comply with applicable A lawyer must comply with applicable law requiring notice to or permission of a law requiring notice to or permission of a tribunal when terminating a tribunal when terminating a representation unless the lawyer has representation unless the lawyer has filed a notice of termination of limited filed a notice of termination of limited appearance. Except when such notice is appearance. Except when such notice is filed, a lawyer shall continue filed, a lawyer shall continue representation when ordered to do so by representation when ordered to do so by a tribunal notwithstanding good cause for a tribunal notwithstanding good cause for terminating the representation. terminating the representation.

Rule 4-1.16(c)Rule 4-1.16(c)

SeeSee Rule 4-1.2 for Rule 4-1.2 for Scope of Scope of Representation and Representation and Rule 55.03(b)(3) for Rule 55.03(b)(3) for limited entry of limited entry of appearance and appearance and termination of limited termination of limited appearanceappearance

Mandatory WithdrawalMandatory WithdrawalRule 4-1.16(a)Rule 4-1.16(a)

The representation will result in The representation will result in violation of the rules of professional violation of the rules of professional conduct or other law;conduct or other law;

The lawyer’s physical or mental The lawyer’s physical or mental condition materially impairs the condition materially impairs the lawyer’s ability to represent the lawyer’s ability to represent the client; orclient; or

The lawyer is discharged.The lawyer is discharged.

Permissive WithdrawalPermissive WithdrawalRule 4-1.16(b)Rule 4-1.16(b)

(1) Withdrawal can be accomplished (1) Withdrawal can be accomplished without material adverse effect on the without material adverse effect on the interests of the client;interests of the client;

(2) The client persists in a course of (2) The client persists in a course of action involving the lawyer’s services action involving the lawyer’s services that the lawyer reasonably believes is that the lawyer reasonably believes is criminal or fraudulent;criminal or fraudulent;

(3) The client has used the lawyer’s (3) The client has used the lawyer’s services to perpetrate a crime or services to perpetrate a crime or fraud;fraud;


(4) The client insists upon taking (4) The client insists upon taking action that the lawyer considers action that the lawyer considers repugnant or with which the lawyer repugnant or with which the lawyer has a fundamental disagreement;has a fundamental disagreement;

(5) The client fails substantially to (5) The client fails substantially to fulfill an obligation to the lawyer fulfill an obligation to the lawyer regarding the lawyer’s services and regarding the lawyer’s services and has been given reasonable warning has been given reasonable warning that the lawyer will withdraw unless that the lawyer will withdraw unless the obligation is fulfilled;the obligation is fulfilled;


(6) The representation will result in (6) The representation will result in an unreasonable financial burden on an unreasonable financial burden on the lawyer or has been rendered the lawyer or has been rendered unreasonably difficult by the client; unreasonably difficult by the client; oror

(7) Other good cause for withdrawal (7) Other good cause for withdrawal exists.exists.

Duties After WithdrawalDuties After WithdrawalRule 4-1.16(d)Rule 4-1.16(d)

Upon termination of representation, a lawyer Upon termination of representation, a lawyer shall take steps to the extent reasonably shall take steps to the extent reasonably practicable to protect a client's interests, such practicable to protect a client's interests, such as as giving reasonable notice to the client, giving reasonable notice to the client, allowing time for employment of other counsel, allowing time for employment of other counsel, surrendering papers and property to which the surrendering papers and property to which the

client is entitled and client is entitled and refunding any advance payment of fee or expense refunding any advance payment of fee or expense

that has not been earned or incurred. that has not been earned or incurred. The lawyer may retain papers relating to the The lawyer may retain papers relating to the

client to the extent permitted by other law. client to the extent permitted by other law.

Duties After WithdrawalDuties After Withdrawal

Still subject to Rules of Professional Still subject to Rules of Professional Responsibility Responsibility

SeeSee particularly -- particularly -- Rule 4-1.6 – Confidentiality of Rule 4-1.6 – Confidentiality of

InformationInformation Rule 4-1.9 – Duties to Former ClientsRule 4-1.9 – Duties to Former Clients Rule 4-1.15 – Safekeeping PropertyRule 4-1.15 – Safekeeping Property

Actual Cases – Discipline ImposedActual Cases – Discipline Imposed

Informal OpinionsInformal Opinions Opinion Number: 20060053 - Rule Number: Opinion Number: 20060053 - Rule Number: QUESTION: Attorney has reason to believe that a Trustee QUESTION: Attorney has reason to believe that a Trustee

misappropriated, and perhaps stole, funds from a Trust. Since misappropriated, and perhaps stole, funds from a Trust. Since Attorney represented the Trustee, is Attorney permitted to notify and Attorney represented the Trustee, is Attorney permitted to notify and inform the other beneficiaries of the Trustee's management of the inform the other beneficiaries of the Trustee's management of the Trust and of Attorney's suspicions? To Attorney's knowledge, the Trust and of Attorney's suspicions? To Attorney's knowledge, the other beneficiaries have received no information regarding the Trust, other beneficiaries have received no information regarding the Trust, and they have not contacted Attorney. and they have not contacted Attorney.

ANSWER: Attorney may not disclose the information to the other ANSWER: Attorney may not disclose the information to the other beneficiaries, unless Attorney has the consent of the Trustee. If the beneficiaries, unless Attorney has the consent of the Trustee. If the Trustee will come forward with the necessary information, Attorney Trustee will come forward with the necessary information, Attorney may continue to represent the Trustee in attempting to resolve any may continue to represent the Trustee in attempting to resolve any problems. It is permissible for Attorney to advise the Trustee that problems. It is permissible for Attorney to advise the Trustee that Attorney will withdraw if the Trustee is unwilling to take the steps Attorney will withdraw if the Trustee is unwilling to take the steps Attorney believes to be necessary, including consenting to disclosure Attorney believes to be necessary, including consenting to disclosure to the other beneficiaries. It is also permissible for Attorney to to the other beneficiaries. It is also permissible for Attorney to withdraw, at this point, regardless of the steps the Trustee is willing withdraw, at this point, regardless of the steps the Trustee is willing to take. If the Trustee is not willing to take the steps necessary to to take. If the Trustee is not willing to take the steps necessary to resolve the problem and Attorney believes that the Trustee's conduct resolve the problem and Attorney believes that the Trustee's conduct is fraudulent or criminal, Attorney must withdraw if Attorney's is fraudulent or criminal, Attorney must withdraw if Attorney's representation would assist the fraudulent or criminal activity. representation would assist the fraudulent or criminal activity.

Informal OpinionsInformal Opinions Opinion Number: 20030049 - Rule Number: 1.1; 1.16 Opinion Number: 20030049 - Rule Number: 1.1; 1.16 QUESTION: Attorney's law firm recently lost the attorneys in its litigation QUESTION: Attorney's law firm recently lost the attorneys in its litigation

department and those attorneys are not able to continue to handle the department and those attorneys are not able to continue to handle the litigation. Before leaving, one of the attorneys won a trial on a personal injury litigation. Before leaving, one of the attorneys won a trial on a personal injury case. The case was reversed and remanded for new trial. Attorney's firm does case. The case was reversed and remanded for new trial. Attorney's firm does not have anyone who can represent this client adequately. Attorney's firm has not have anyone who can represent this client adequately. Attorney's firm has been unsuccessful in securing other counsel for the client. The case is not on been unsuccessful in securing other counsel for the client. The case is not on a trial docket. May Attorney's firm withdraw under these circumstances? a trial docket. May Attorney's firm withdraw under these circumstances?

ANSWER: It is permissible for Attorney's firm to seek to withdraw, if you the ANSWER: It is permissible for Attorney's firm to seek to withdraw, if you the firm can do so at a time that will not be materially adverse to the client. firm can do so at a time that will not be materially adverse to the client. Whether a case is on a trial docket would be one factor in determining Whether a case is on a trial docket would be one factor in determining whether withdrawal, at a given time, will be materially adverse. However, whether withdrawal, at a given time, will be materially adverse. However, there could be other factors to consider, such as discovery, court orders, etc. there could be other factors to consider, such as discovery, court orders, etc. If there are no factors that will cause withdrawal to be materially adverse to If there are no factors that will cause withdrawal to be materially adverse to the client, Attorney's firm may seek to withdraw, notwithstanding the fact that the client, Attorney's firm may seek to withdraw, notwithstanding the fact that the client has been unable to find other counsel.the client has been unable to find other counsel.

Whether Attorney's firm is permitted to withdraw is entirely in the discretion Whether Attorney's firm is permitted to withdraw is entirely in the discretion of the court. If the court refuses to allow withdrawal, under Rule 4-1.16(c), of the court. If the court refuses to allow withdrawal, under Rule 4-1.16(c), Attorney's firm must stay in the case and represent the client. Attorney's firm Attorney's firm must stay in the case and represent the client. Attorney's firm should be sure to inform the court of its concerns about its ability to should be sure to inform the court of its concerns about its ability to adequately represent the client, in the course of seeking leave to withdraw. adequately represent the client, in the course of seeking leave to withdraw.

Informal OpinionsInformal Opinions Opinion Number: 20030047 - Rule Number: 1.16(d); 1.15 Opinion Number: 20030047 - Rule Number: 1.16(d); 1.15 QUESTION: If Attorney sends a client a courtesy copy of all QUESTION: If Attorney sends a client a courtesy copy of all

pleadings at the time of filing and a copy of all pleadings pleadings at the time of filing and a copy of all pleadings filed by opposing counsel (with a notation that it is a filed by opposing counsel (with a notation that it is a courtesy copy for the client's information and safekeeping), courtesy copy for the client's information and safekeeping), is it necessary to copy the file and provide the documents is it necessary to copy the file and provide the documents again to the client? May attorney charge for copies of again to the client? May attorney charge for copies of documents previously sent to client?documents previously sent to client?

ANSWER: It is permissible for copies provided to the client ANSWER: It is permissible for copies provided to the client during the course of the representation to serve as client's during the course of the representation to serve as client's file, or a portion of the client's file, if two conditions are file, or a portion of the client's file, if two conditions are met. First, Attorney would have had to provide an met. First, Attorney would have had to provide an explanation of this process prior to sending the copies. explanation of this process prior to sending the copies. Second, the original of the file belongs to the client. Second, the original of the file belongs to the client. Therefore, if there is an original in the file, a copy does not Therefore, if there is an original in the file, a copy does not fulfill the obligation to the client unless the attorney and fulfill the obligation to the client unless the attorney and client have agreed that it will. If both conditions are not client have agreed that it will. If both conditions are not met, attorney should provide the file to the client and keep met, attorney should provide the file to the client and keep copies at Attorney's own expense. copies at Attorney's own expense.

Informal OpinionsInformal Opinions Opinion Number: 20030010 - Rule Number: 1.16 Opinion Number: 20030010 - Rule Number: 1.16 QUESTION: Attorney represented client in a QUESTION: Attorney represented client in a

matter which is now concluded. Attorney matter which is now concluded. Attorney advanced funds for court reporter fees and advanced funds for court reporter fees and transcripts. The client has requested copies of the transcripts. The client has requested copies of the transcripts, but has not reimbursed Attorney for transcripts, but has not reimbursed Attorney for these expenses. Must Attorney provide copies of these expenses. Must Attorney provide copies of the transcripts to the client? the transcripts to the client?

ANSWER: Rule 4-1.16 requires Attorney to return ANSWER: Rule 4-1.16 requires Attorney to return the client's property to the client at the the client's property to the client at the conclusion of the representation. However, under conclusion of the representation. However, under Formal Opinion 115, as amended, Attorney may Formal Opinion 115, as amended, Attorney may withhold items for which Attorney has paid out-of-withhold items for which Attorney has paid out-of-pocket and has not been reimbursed. pocket and has not been reimbursed.

Informal OpinionsInformal Opinions Opinion Number: 20000172 - Rule Number: 1.3; 1.16(b); Opinion Number: 20000172 - Rule Number: 1.3; 1.16(b);

1.5 1.5 QUESTION: Attorney would like to add a provision to QUESTION: Attorney would like to add a provision to

Attorney's standard engagement letter for civil cases, Attorney's standard engagement letter for civil cases, particularly domestic relations cases. Is it permissible to particularly domestic relations cases. Is it permissible to state in the engagement letter that if the client does not state in the engagement letter that if the client does not make payment, Attorney will stop working on his or her make payment, Attorney will stop working on his or her case? Attorney would like to state that Attorney will not case? Attorney would like to state that Attorney will not continue to work on a client's case if no payments are continue to work on a client's case if no payments are made. made.

ANSWER: Attorney may not include the provision Attorney ANSWER: Attorney may not include the provision Attorney proposes in Attorney's engagement letter. Under Rule 4-proposes in Attorney's engagement letter. Under Rule 4-1.3, Attorney has an obligation to diligently represent 1.3, Attorney has an obligation to diligently represent Attorney´s client, unless Attorney withdraws. If Attorney Attorney´s client, unless Attorney withdraws. If Attorney has not been paid, Attorney´s option is to continue to has not been paid, Attorney´s option is to continue to diligently represent the client and seek payment, or seek to diligently represent the client and seek payment, or seek to withdraw. Attorney may seek to withdraw under Rule 4-withdraw. Attorney may seek to withdraw under Rule 4-1.16(b), only if withdrawal may be accomplished without 1.16(b), only if withdrawal may be accomplished without ´material adverse effect on the interests of the client. ´material adverse effect on the interests of the client.

Informal OpinionsInformal Opinions Opinion Number: 960110 - Rule Number: 1.16 Opinion Number: 960110 - Rule Number: 1.16 QUESTION: Attorney represents a client in a QUESTION: Attorney represents a client in a

matter which is set for hearing in several matter which is set for hearing in several months. The client did not divulge certain months. The client did not divulge certain information to Attorney which Attorney has information to Attorney which Attorney has now learned. If Attorney had been aware of this now learned. If Attorney had been aware of this information, Attorney would not have taken the information, Attorney would not have taken the case. May Attorney seek to withdraw? case. May Attorney seek to withdraw?

ANSWER: Attorney may withdraw, if Attorney is ANSWER: Attorney may withdraw, if Attorney is allowed by the tribunal to do so, as long as allowed by the tribunal to do so, as long as Attorney is not at a point in the proceedings Attorney is not at a point in the proceedings such that the withdrawal will have a materially such that the withdrawal will have a materially adverse effect on Attorney´s client. adverse effect on Attorney´s client.

Informal OpinionsInformal Opinions Opinion Number: 950248 - Rule Number: 1.16 Opinion Number: 950248 - Rule Number: 1.16 QUESTION: Attorney has lost contact with the clients. Attorney QUESTION: Attorney has lost contact with the clients. Attorney

wishes to withdraw. What is Attorney required to do to notify wishes to withdraw. What is Attorney required to do to notify the clients?the clients?

ANSWER: Attorney has a duty to take all reasonable steps to ANSWER: Attorney has a duty to take all reasonable steps to contact the clients. It is unclear from the information Attorney contact the clients. It is unclear from the information Attorney has provided whether Attorney has taken sufficient steps has provided whether Attorney has taken sufficient steps under the circumstances. Attorney is not required to hire a under the circumstances. Attorney is not required to hire a private investigator but Attorney should conduct a reasonable private investigator but Attorney should conduct a reasonable investigation. Attorney has not indicated whether Attorney has investigation. Attorney has not indicated whether Attorney has checked with various agencies or businesses that may have checked with various agencies or businesses that may have received notification of an address change. The Department of received notification of an address change. The Department of Revenue (drivers and motor vehicle licenses), employers, Revenue (drivers and motor vehicle licenses), employers, banks and relatives all may be appropriate to contact, banks and relatives all may be appropriate to contact, depending on the circumstances. Attorney is not required to depending on the circumstances. Attorney is not required to give notification to the clients by publication if Attorney is give notification to the clients by publication if Attorney is unable to contact them any other way, but Attorney may do unable to contact them any other way, but Attorney may do so. Attorney should also seek guidance from Attorney´s so. Attorney should also seek guidance from Attorney´s malpractice insurer's claims prevention office, regarding any malpractice insurer's claims prevention office, regarding any additional steps they may recommend. additional steps they may recommend.

Informal OpinionsInformal Opinions Opinion Number: 940175 - Rule Number: Opinion Number: 940175 - Rule Number:

1.16;5.24 1.16;5.24 QUESTION: Attorney is the trustee in bankruptcy QUESTION: Attorney is the trustee in bankruptcy

for an attorney who is now deceased. The for an attorney who is now deceased. The deceased attorney had closed client files from deceased attorney had closed client files from many years of practice. What should the trustee many years of practice. What should the trustee do about the files? do about the files?

ANSWER: Rule 5.24 provides a mechanism for ANSWER: Rule 5.24 provides a mechanism for appointment of a trustee to wind up the practice appointment of a trustee to wind up the practice of a deceased attorney. That rule would not of a deceased attorney. That rule would not prohibit the bankruptcy trustee from also being prohibit the bankruptcy trustee from also being the trustee for the practice. The attorney who is the trustee for the practice. The attorney who is appointed trustee under Rule 5.24 should make appointed trustee under Rule 5.24 should make an effort to return the files to the clients. an effort to return the files to the clients.


1.5;1.16(d) 1.5;1.16(d) QUESTION: Attorney accepted a case on a flat fee QUESTION: Attorney accepted a case on a flat fee

basis. Attorney now wishes to withdraw before basis. Attorney now wishes to withdraw before the case is concluded due to the client's lack of the case is concluded due to the client's lack of cooperation. Attorney states that, as a result of cooperation. Attorney states that, as a result of client's lack of cooperation, attorney fees valuing client's lack of cooperation, attorney fees valuing several times the flat fee paid have been several times the flat fee paid have been provided. May Attorney withdraw and, if so, what provided. May Attorney withdraw and, if so, what amount of refund, if any, is owed the client? amount of refund, if any, is owed the client?

ANSWER: Attorney may ask the court for leave to ANSWER: Attorney may ask the court for leave to withdraw. This office cannot resolved factual withdraw. This office cannot resolved factual issues such as the amount of a refund owed in issues such as the amount of a refund owed in the context of an informal advisory opinion. the context of an informal advisory opinion.

Informal OpinionsInformal Opinions Opinion Number: 940059 - Rule Number: 1.4;1.16(d) Opinion Number: 940059 - Rule Number: 1.4;1.16(d) QUESTION: Attorney is representing the class in a QUESTION: Attorney is representing the class in a

class action suit. One of the members of the class is class action suit. One of the members of the class is recruiting class members and obtaining the attorney recruiting class members and obtaining the attorney fee which is forwarded to Attorney. May Attorney fee which is forwarded to Attorney. May Attorney accept these people as clients in this manner? accept these people as clients in this manner?

ANSWER: Yes. Once Attorney accepts them as ANSWER: Yes. Once Attorney accepts them as clients, Attorney must communicate with them clients, Attorney must communicate with them directly affirming Attorney´s representation and directly affirming Attorney´s representation and communicating about the case before taking any communicating about the case before taking any action as their attorney. If they change their mind action as their attorney. If they change their mind after direct communication, Attorney must refund after direct communication, Attorney must refund the fee under Rule 4-1.16. This opinion does not the fee under Rule 4-1.16. This opinion does not consider any restrictions the court may impose. consider any restrictions the court may impose.


1.16 1.16 QUESTION: Attorney and the client have QUESTION: Attorney and the client have

disagreed over the amount of settlement disagreed over the amount of settlement that would be reasonable. As a result, the that would be reasonable. As a result, the client has discharged Attorney twice but has client has discharged Attorney twice but has returned when other attorneys told the client returned when other attorneys told the client that Attorney´s assessment of the case was that Attorney´s assessment of the case was reasonable. May Attorney withdraw?reasonable. May Attorney withdraw?

ANSWER: Yes. Attorney must comply with all ANSWER: Yes. Attorney must comply with all of the requirements of Rule 4-1.16(d), of the requirements of Rule 4-1.16(d), including the requirement that Attorney not including the requirement that Attorney not withdraw if the withdrawal would have a withdraw if the withdrawal would have a materially adverse impact on the interests of materially adverse impact on the interests of Attorney´s client. Attorney´s client.

Informal OpinionsInformal Opinions Opinion Number: 940027 - Rule Number: 1.6 Opinion Number: 940027 - Rule Number: 1.6 QUESTION: Attorney's client is receiving Medicaid. QUESTION: Attorney's client is receiving Medicaid.

Attorney has obtained agreement from an Attorney has obtained agreement from an insurance company to settle a personal injury insurance company to settle a personal injury case. Statutes require both Attorney and client to case. Statutes require both Attorney and client to notify Social Services of the settlement. Client has notify Social Services of the settlement. Client has withdrawn authority to settle and discharged withdrawn authority to settle and discharged Attorney after Attorney informed client of this Attorney after Attorney informed client of this obligation. May Attorney report to Social Services? obligation. May Attorney report to Social Services?

ANSWER: If Attorney reports without client's ANSWER: If Attorney reports without client's consent, Attorney will violate the confidentiality consent, Attorney will violate the confidentiality obligation under Rule 4-1.6. Attorney should obligation under Rule 4-1.6. Attorney should counsel client regarding the obligations under the counsel client regarding the obligations under the statutes prior to withdrawing. If client will not statutes prior to withdrawing. If client will not consent to reporting, Attorney must remain silent consent to reporting, Attorney must remain silent and withdraw under Rule 4-1.16(a)(1). and withdraw under Rule 4-1.16(a)(1).

Informal OpinionsInformal Opinions Opinion Number: 940019 - Rule Number: 1.16 Opinion Number: 940019 - Rule Number: 1.16 Question 1. May Attorney move to withdraw from a Question 1. May Attorney move to withdraw from a

criminal case if the client is uncooperative and will criminal case if the client is uncooperative and will not communicate or assist with the defense? The not communicate or assist with the defense? The Attorney will warn the client that Attorney will Attorney will warn the client that Attorney will withdraw if the situation doesn't improve before the withdraw if the situation doesn't improve before the Attorney actually withdraws. Attorney actually withdraws.

Question 2. If a client who is a criminal defendant Question 2. If a client who is a criminal defendant fails to make a court date and a warrant is issued fails to make a court date and a warrant is issued and the client has had no contact with Attorney for and the client has had no contact with Attorney for several weeks or months, may Attorney move to several weeks or months, may Attorney move to withdraw? withdraw?

ANSWER: Yes to both questions. However, the fact ANSWER: Yes to both questions. However, the fact that the Rules of Professional Conduct allow that the Rules of Professional Conduct allow Attorney to move to withdraw does not affect the Attorney to move to withdraw does not affect the authority of the court to refuse to sustain that authority of the court to refuse to sustain that motion.motion.

Informal OpinionsInformal Opinions Opinion Number: 940011 - Rule Opinion Number: 940011 - Rule

Number: 1.16 Number: 1.16 QUESTION: Attorney accepted a QUESTION: Attorney accepted a

client in a dissolution case. Attorney client in a dissolution case. Attorney accepted the retainer and the filing accepted the retainer and the filing fee but has not filed. If Attorney fee but has not filed. If Attorney returns the filing fee and retainer, returns the filing fee and retainer, may Attorney withdraw?may Attorney withdraw?

ANSWER: Yes. ANSWER: Yes.

Informal OpinionsInformal Opinions Opinion Number: 930099 - Rule Opinion Number: 930099 - Rule

Number: 1.16 Number: 1.16 QUESTION: May an attorney QUESTION: May an attorney

withdraw from a case due to the withdraw from a case due to the client's interference with the client's interference with the representation?representation?

ANSWER: Yes. Attorney must comply ANSWER: Yes. Attorney must comply with all of the requirements of Rule with all of the requirements of Rule 1.16(d). 1.16(d).

In re DonahoIn re Donaho 98 S.W.3d 871 (Mo. banc 2003)98 S.W.3d 871 (Mo. banc 2003)

Donaho, licensed in both Illinois and Donaho, licensed in both Illinois and Missouri agreed to represent Missouri agreed to represent Campbell in a post-dissolution actionCampbell in a post-dissolution action

Campbell paid him $700 fee and $60 Campbell paid him $700 fee and $60 filing feefiling fee

Donaho prepared the motion and Donaho prepared the motion and sent it to Campbell, who promptly sent it to Campbell, who promptly signed and returned itsigned and returned it

Donaho took no further actionDonaho took no further action


Six months later Donoho closed his Illinois Six months later Donoho closed his Illinois office and opened a new office in St. Louisoffice and opened a new office in St. Louis

Did not inform Campbell of new address or Did not inform Campbell of new address or telephone numbertelephone number

Campbell –Campbell – Left messages on Donaho’s home phone which Left messages on Donaho’s home phone which

he did not returnhe did not return Tried to contact him at new office and he did Tried to contact him at new office and he did

not respondnot respond Send certified letter to new office, which he Send certified letter to new office, which he

received but did not respondreceived but did not respond


Campbell demanded return of feeCampbell demanded return of fee Donaho responded that he would return the Donaho responded that he would return the

fee if Campbell signed a complete releasefee if Campbell signed a complete release Donaho drafted the release, but did not Donaho drafted the release, but did not

advise Campbell to seek independent advise Campbell to seek independent adviceadvice

Campbell signed and returned the releaseCampbell signed and returned the release Donaho failed to return the money as Donaho failed to return the money as

promisedpromised


Campbell filed suit in small claims and Campbell filed suit in small claims and obtained a default judgment for $765, obtained a default judgment for $765, which Donaho did not paywhich Donaho did not pay

Campbell filed complaint with OCDCCampbell filed complaint with OCDC Disciplinary committee indicated to Donaho Disciplinary committee indicated to Donaho

that timely payment of the judgment would be that timely payment of the judgment would be considered a mitigating factor and would be considered a mitigating factor and would be viewed favorably if satisfied by a certain dateviewed favorably if satisfied by a certain date

Donaho faxed copies of two money orders Donaho faxed copies of two money orders made out to Campbell and represented that made out to Campbell and represented that they had been sent to Campbellthey had been sent to Campbell

Committee admonished Donaho and closed fileCommittee admonished Donaho and closed file Instead of mailing the money orders to Instead of mailing the money orders to

Campbell, however, Donaho cashed them for Campbell, however, Donaho cashed them for his own usehis own use


Campbell filed second complaint with OCDC –Campbell filed second complaint with OCDC – Among the rule violations the committee included Among the rule violations the committee included

in the charge was a violation of Rule 4-1.16(d)in the charge was a violation of Rule 4-1.16(d) Supreme court stated: “As noted in the disciplinary Supreme court stated: “As noted in the disciplinary

rules, ‘[p]erhaps no professional shortcoming is rules, ‘[p]erhaps no professional shortcoming is more widely resented than procrastination.’ Rule 4-more widely resented than procrastination.’ Rule 4-1.3, Comment. Of course, the fact that Respondent 1.3, Comment. Of course, the fact that Respondent failed to refund the advance fee upon the failed to refund the advance fee upon the termination of representation as required by Rule 4-termination of representation as required by Rule 4-1.16(d) compounds the problem.1.16(d) compounds the problem.

Supreme Court suspended Donaho’s license Supreme Court suspended Donaho’s license indefinitely with leave to apply for reinstatement no indefinitely with leave to apply for reinstatement no sooner than twelve months after date of opinionsooner than twelve months after date of opinion

Supreme Court noted in passing that: “the evidence Supreme Court noted in passing that: “the evidence suggests that [Donaho] may have been suffering suggests that [Donaho] may have been suffering from a drinking problem during the time in from a drinking problem during the time in question” question”

In the Interest of P.D.In the Interest of P.D. 144 S.W.3d 907 (Mo.App., E.D. 2003)144 S.W.3d 907 (Mo.App., E.D. 2003)

Lawyer represented natural mother in Lawyer represented natural mother in termination of parental rights casetermination of parental rights case

Hearing on September 23Hearing on September 23 Mother was presentMother was present Case set for trial on December 17Case set for trial on December 17 Lawyer sent mother letter confirming trial dateLawyer sent mother letter confirming trial date

Date of trial Mother did not appearDate of trial Mother did not appear Lawyer moved for continuance, which court Lawyer moved for continuance, which court

denieddenied Lawyer orally moved to withdraw, which court Lawyer orally moved to withdraw, which court

sustainedsustained

In the Interest of P.D.In the Interest of P.D. 144 S.W.3d 907 (Mo.App., E.D. 2003)144 S.W.3d 907 (Mo.App., E.D. 2003)

On appeal mother claimed trial court On appeal mother claimed trial court abused its discretion is allowing her abused its discretion is allowing her lawyer to withdrawlawyer to withdraw

Eastern District, citing Rule 4-1.16 and Eastern District, citing Rule 4-1.16 and a local court rule, held that trial court a local court rule, held that trial court abused its discretion because there abused its discretion because there was nothing in the record that lawyer was nothing in the record that lawyer had provided mother with notice of his had provided mother with notice of his intent to request to withdrawintent to request to withdraw

Judgment of termination was reversedJudgment of termination was reversed

Effective and Ethical SettlementsEffective and Ethical Settlements

Rule 4-1.2Rule 4-1.2 A lawyer shall abide by a client’s A lawyer shall abide by a client’s

decisions concerning the objectives of decisions concerning the objectives of the representationthe representation

A lawyer shall abide by a client’s A lawyer shall abide by a client’s decision whether to settle a matterdecision whether to settle a matter

Comment 3: At the outset of the Comment 3: At the outset of the representation, the client may authorize representation, the client may authorize the lawyer to take specific action on the lawyer to take specific action on client’s behalf without further client’s behalf without further consultationconsultation


Rule 4-1.4 requires that the lawyer Rule 4-1.4 requires that the lawyer explain a matter to the extent explain a matter to the extent reasonably necessary to permit the reasonably necessary to permit the client to make informed decisions client to make informed decisions regarding the representationregarding the representation Interplay between Rule 4-1.2 and 4-1.4Interplay between Rule 4-1.2 and 4-1.4

Client’s decision whether or not to settle a Client’s decision whether or not to settle a case must be an informed decisioncase must be an informed decision


Rule 4-4.1 prohibits a lawyer from making Rule 4-4.1 prohibits a lawyer from making a false statement of material fact to a 3a false statement of material fact to a 3rdrd person while representing a clientperson while representing a client

What about false statements made by What about false statements made by counsel during a settlement negotiation?counsel during a settlement negotiation? Comment 2: Under generally accepted Comment 2: Under generally accepted

conventions in negotiation, certain types of conventions in negotiation, certain types of statements ordinarily are not taken as statements ordinarily are not taken as statements of material fact (e.g., estimates of statements of material fact (e.g., estimates of value or the client’s intentions as to an value or the client’s intentions as to an acceptable settlement of a claim)acceptable settlement of a claim)

In re ColemanIn re Coleman, 295 S.W.3d 857 , 295 S.W.3d 857 (Mo. banc 2009)(Mo. banc 2009)

Client hired Coleman to represent her in 3 Client hired Coleman to represent her in 3 separate civil actions (med. malpractice, separate civil actions (med. malpractice, wrongful term. and discrimination cases)wrongful term. and discrimination cases)

During next 5 years, client paid Coleman During next 5 years, client paid Coleman up to $50,000 in fees and expenses.up to $50,000 in fees and expenses.

When client no longer able to pay When client no longer able to pay additional fees, Coleman suggested additional fees, Coleman suggested converting the 3 cases to contingent fee converting the 3 cases to contingent fee agreements. Client agreed.agreements. Client agreed.

In re ColemanIn re Coleman

““In consideration of one-third (1/3) of any In consideration of one-third (1/3) of any recovery, I agree to forego my hourly rate, recovery, I agree to forego my hourly rate, and instead, agree to accept one-third of any and instead, agree to accept one-third of any recovery. However, because I am taking a risk recovery. However, because I am taking a risk with you on this case, and because I am more with you on this case, and because I am more familiar with the legal trends relative to familiar with the legal trends relative to judgments, settlements, and summary judgments, settlements, and summary disposition, you agree I shall have the disposition, you agree I shall have the exclusive right to determine when and for exclusive right to determine when and for how much to settle this case. That way, I am how much to settle this case. That way, I am not held hostage to an agreement I disagree not held hostage to an agreement I disagree with.”with.”

In re ColemanIn re Coleman

The employer in the discrimination case The employer in the discrimination case offered to settle the client’s claim for offered to settle the client’s claim for $20,000. The client rejected the offer.$20,000. The client rejected the offer.

Coleman settled the case without his Coleman settled the case without his client’s consent. Coleman submitted client’s consent. Coleman submitted settlement documents to the client. Client settlement documents to the client. Client refused to sign and insisted on proceeding refused to sign and insisted on proceeding to trial.to trial.

Coleman withdrew in all 3 cases and filed Coleman withdrew in all 3 cases and filed a motion to enforce settlement in the a motion to enforce settlement in the discrimination case.discrimination case.

In re ColemanIn re Coleman Violations found by the Court:Violations found by the Court:

Rule 4-1.2 (Scope of Representation) by accepting a Rule 4-1.2 (Scope of Representation) by accepting a settlement offer without client consent and filing a settlement offer without client consent and filing a motion to enforce the settlement;motion to enforce the settlement;

Rule 4-1.7 (Conflict of Interest) by entering into a Rule 4-1.7 (Conflict of Interest) by entering into a written agreement with his client purporting to give written agreement with his client purporting to give Coleman exclusive settlement rights and taking Coleman exclusive settlement rights and taking actions adverse to the client’s interests;actions adverse to the client’s interests;

Rule 4-1.16 (Terminating Representation) by failing to Rule 4-1.16 (Terminating Representation) by failing to protect his client’s interests upon terminationprotect his client’s interests upon termination

Rule 4-8.4 (Misconduct) by engaging in conduct Rule 4-8.4 (Misconduct) by engaging in conduct prejudicial to the administration of justice.prejudicial to the administration of justice.

Discipline ordered: one year stayed suspension with Discipline ordered: one year stayed suspension with probation.probation.

Questions?Questions?

bowing out professionally

Documents

client orthe lawyer

client or7

rule number

lawyers services

notice of termination

csee rule

athe representation

scope of representation