PROFESSIONALISM CORNER
PROFESSIONALISM CORNER
Motions to Withdraw : Euphemysticism on Parade
D . CULVER " SKIP " SMITH III
euphemism n . A mild , indirect , or vague term for one considered harsh , blunt , or offensive .
— American Heritage Dictionary of the English Language ( 5th ed .)
euphemysticism n . A mild , indirect , or vague , off-the-top-of-the-head term for one that risks consequences adverse to one ’ s career . — Smith , Ruminations on the Lawyering Life ( unpublished )
Rule Regulating The Florida Bar 4 1.16 lists ten circumstances requiring or permitting a lawyer to terminate the representation of a client prior to conclusion of the matter for which the lawyer was retained . Five of them involve client conduct , ranging from criminal activity to nonpayment of the lawyer ’ s bill . ( No , the latter is not criminal .) If the representation is in a litigated matter , the lawyer must obtain the court ’ s consent to the termination , thus necessitating a motion to withdraw . What grounds should the motion assert ? If client conduct is the cause , the lawyer faces tension between the lawyer ’ s duty to the court not to make a false statement of fact ( Rule 4 3.3 ( a )( 1 )) and the lawyer ’ s duty to the client not to reveal “ information relating to the representation ” ( Rule 4 1.6 ( a )).
The customary motion in this and many other jurisdictions simply intones “ irreconcilable differences ” with the client . Whether that satisfies the duty of candor to the court is debatable . In the case of nonpayment , it literally may be misleading — would not payment reconcile the “ differences ”? Pleading the applicable rule provision , however , reveals information relating to the representation . ( Remember , the ethical rule is far broader in scope than the evidentiary lawyerclient privilege .) For example :
1 . “[ Client ] has failed to fulfill an obligation to undersigned counsel regarding undersigned counsel ’ s services and has been given a reasonable warning that undersigned counsel would withdraw unless the obligation was fulfilled .” [ Rule 4 1.16 ( b )( 3 ).] Little doubt what that means .
2 . “[ Client ] insists upon taking action that undersigned counsel finds repugnant or imprudent or with which undersigned counsel has a fundamental disagreement .” [ Rule 4 1.16 ( b )( 2 ).] That practically screams that the client has threatened or demanded something dishonest or offensive to socially accepted ( i . e ., the lawyer ’ s ) sensibilities .
3 . “ The representation has been rendered unreasonably difficult by the client .” [ Rule 4 1.16 ( b )( 2 ).] Message ? The client is unreasonably demanding or — in a reversal of the usual pattern — won ’ t respond to the lawyer ’ s e-mails or phone calls or , perhaps , simply has disappeared .
Hence the use of a euphemystic term like “ irreconcilable differences ,” which could mean just about anything and reveals nothing specific . It is code for “ Your Honor , trust me , I need to get out of this case .” Most judges know the code and grant permission to withdraw absent overriding circumstances . In these more complicated times , however — when judges have case-management issues and occasionally encounter lawyers who harbor questionable motives — they may be inclined to press for the real basis for withdrawal . This triggers the ethical dilemma for the lawyer .
Balance is called for here . “ Irreconcilable differences ” will not mislead a jurist who knows the code and accepts it as sufficient . To avoid judicial inquiry , however , the better approach may be to allege the following :
Professional considerations require termination of the representation . The specific details are entitled to confidentiality under Rule Regulating The Florida Bar 4 1.6 ( a ). See R . Reg . Fla . Bar 4 1.16 cmt . para . [ 3 ] (“ The lawyer ’ s statement that professional considerations require termination ordinarily should be accepted as sufficient .”)
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If that fails to deter judicial inquiry , the lawyer should suggest to the judge , “ Your Honor has the discretion to grant the motion without requiring further detail , and I respectfully request that you do so .” If the judge nonetheless presses for detail , the lawyer might offer a general , vague description , such as ( if true ), “[ Client ] and I have a fundamental disagreement over strategy .” If the judge presses further , the lawyer should request the opportunity to explain ex parte and in camera . But if the problem is something truly embarrassing or prejudicial to the client — especially if the judge will be the fact finder — the lawyer should stand on the duty of confidentiality . One hopes that the judge will see the value in not pressing the point further and in ruling on the motion without further detail . 1
D . Culver “ Skip ” Smith III advises and represents lawyers and law firms in ethical and disciplinary matters and serves as an expert witness on the professional responsibility of lawyers . He maintains an office in West Palm Beach and can be reached at 561-598-6800 or at < csmith @ culversmithlaw . com >.
1
Note that the focus of this article is motions to withdraw and not a lawyer ’ s independent duty under subsections ( a )( 2 ) and ( b ) of Rule 4 3.3 to disclose a client ’ s criminal or fraudulent conduct to the court under certain circumstances .)