Opinion 92-5

You have asked the Professional Guidance Committee for an opinion in connection with the following situation: you represented the plaintiff in a personal injury matter which resulted in a defense verdict. While post-trial motions were pending, the client discharged you, pursuant to which you filed a motion for leave to withdraw as counsel. Thereafter, the client changed his mind and opposed the petition, and the trial court denied leave to withdraw. You are convinced that if post-trial motions are denied, the client will wish to appeal to the Superior Court. You do not believe there are any legitimate appealable issues and strained relations between you and the client make representation difficult.

Specifically, you have addressed the following question to the committee:

1.  Whether you are obligated to represent the client in an appeal to the Superior Court; and if not, what type of notice should be given the client and when should it be done.

1. Termination of representation:

The termination of representation is governed by Rule 1.16 of the Rules of Professional Conduct, which provides in part:

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: the representation will result in violation of the Rules of Professional Conduct or other law;

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

(3) the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;

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

(6) other good cause for withdrawal exists.

(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(d) 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 that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

The exception of Paragraph (c) does not apply to the appeal since you have not appeared in the Superior Court. Therefore, so long as you have made a good faith determination that circumstances exist which require withdrawal under Rule 1.16(a) or permit withdrawal under 1.16(b), you may simply decline further representation if the post-trial motions are denied subject to the requirements of Rule 1.16(d). In this regard, you should note that Rule 3.1 of the Rules of Professional Conduct prohibits the assertion of frivolous issues so that, if you determine in good faith that there are no non-frivolous appellate issues, you would be required to terminate representation under Rule 1.16(a).

2. Notice of termination:

In order to assure that the requirements of Rule 1.16(d) have been met, the Committee would suggest that you provide the client with the earliest possible notice of your intention to discontinue representation. Further, in default of notice that the client has secured new counsel, we suggest that you provide the client with explicit written instructions as to how the client may perfect his or her right of appeal.

This opinion addresses only your ethical responsibilities pursuant to the Rules of Professional Conduct. The committee expresses no opinion as to any contractual responsibilities you may have to your client to continue representation under the terms of your fee agreement with him or her.

Those paragraphs which do not appear to have any possible relevance to your situation are not reproduced here.
The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.