An attorney, however, may not freely terminate2 the attorney-client relationship. When retained in a legal proceeding, an attorney is generally required to represent the client until its conclusion. Marine Midland Tr. Co. of Mohawk Valley v. Penberthy, DeIorio & Rayhill, 60 Misc.2d 11, 13, 301 N.Y.S.2d 221, 224 (Sup. Ct. Oneida County 1969). An attorney can only terminate the attorney-client relationship upon good cause and reasonable notice. Willis v. Holder, 43 A.D.3d 1441, 1441, 842 N.Y.S.2d 841, 842 (4th Dep’t 2007); Mason v. MTA New York City Transit, 38 A.D.3d 258, 832 N.Y.S.2d 153, 154 (1st Dep’t 2007).3 New York’s Rules of Professional Conduct set forth when withdrawal is required and permitted.
Rules of Professional Conduct
Pursuant to New York’s Rules of Professional Conduct (“Rules”), an attorney must withdraw from representing a client when: (1) the attorney knows or reasonably should know that the representation will result in a violation of the Rules4 or of law; (2) the attorney’s physical or mental condition materially impairs the representation; (3) the attorney is discharged by the client; or (4) the attorney knows or reasonably should know that the client is “bringing the legal action, conducting the defense, or asserting a position in the matter, or is otherwise having steps taken,” to harass or maliciously injure. N.Y. Comp. Codes R. & Regs. Tit. 22, §1200, Rule 1.16(b).
An attorney may withdraw from representing a client when: (1) withdrawal will have no material adverse effect on the client’s interests; (2) the client persists in a course of action involving the attorney’s services the attorney reasonably believes is criminal or fraudulent; (3) the client has used the attorney to perpetrate a crime or fraud; (4) the client insists on a course of action with which the attorney has a fundamental disagreement; (5) the client disregards an agreement or obligation for expenses or fees; (6) the client insists on a frivolous claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification or reversal of existing law; (7) the client fails to cooperate in the representation or renders the representation unreasonably difficult; (8) the attorney's inability to work with co-counsel indicates that the best interest of the client will be served by withdrawal; (9) the attorney's mental or physical condition renders it difficult to carry out representation effectively; (10) the client knowingly and freely assents to termination; or (11) the client insists that the attorney pursue a course of conduct which is illegal or prohibited by the Rules. N.Y. Comp. Codes R. & Regs. Tit. 22, §1200, Rule 1.16(c).
If a tribunal requires permission for withdrawal, an attorney may not withdraw from the attorney-client relationship without permission. N.Y. Comp. Codes R. & Regs. Tit. 22, §1200, Rule 1.16(d).
An attorney of record may be changed by the filing of a Consent to Change Attorney, signed by the client. CPLR §321(b)(1). However, if the client does not consent and good and sufficient cause exists, an attorney may withdraw upon motion to the Court and notice to the client. CPLR §321(b)(2); see In re Alicia EE., 72 A.D.3d 1155, 1156, 899 N.Y.S.2d 380, 381 (3d Dep’t 2010); see also Williams v. Lewis, 258 A.D.2d 974, 974, 685 N.Y.S.2d 382, 382 (4th Dep’t 1999). The decision lies within the sole discretion of the Court and will not be overturned absent a showing of improvident exercise of discretion. See McDonald v. Shore, 100 A.D.3d 602, 603, 953 N.Y.S.2d 650, 651 (2d Dep’t 2012).5 Notice to the client should be reasonable to allow the opportunity to hire new counsel. See McKelvey v. Oltmann, 16 A.D.2d 957, 957, 229 N.Y.S.2d 814, 816 (2d Dep’t 1962).6
Upon termination of the attorney-client relationship, steps should be taken to avoid prejudice to the former client. It is best practice to send a written communication to the former client: (1) clearly indicating what representation is being terminated; (2) setting forth the reason for the termination; (3) outlining all future critical deadlines; (4) recommending a process by which the attorney will confer with incoming counsel; (5) delivering papers and property to the former client to which it is entitled; and (6) promptly refunding any fees not earned.
Impact on Legal Malpractice Claims
The statute of limitations applicable to a legal malpractice cause of action is three years, regardless of whether the underlying theory is based in contract or tort. CPLR §214(6); see Tsafatinos v. Lee David Auerbach, P.C., 80 A.D.3d 749, 750, 915 N.Y.S.2d 500, 00 (2d Dep’t 2011). A legal malpractice cause of action accrues on the date the alleged malpractice was committed, not when discovered. See Town of Wallkill v. Rosenstein, 40 A.D.3d 972, 973, 837 N.Y.S.2d 212, 214 (2d Dep’t 2007).
Given the trust inherently involved in the attorney-client relationship, courts have adopted the Continuous Representation Doctrine which tolls the statute of limitations until the conclusion of the attorney’s representation pertaining to the specific subject matter underlying the malpractice claim. See Shumsky v. Eisenstein, 96 N.Y.2d 164, 168, 750 N.E.2d 67, 70–71 (2001). Under this doctrine, a plaintiff need not commence a legal malpractice action until the attorney has ceased representing the client in the case in which the alleged malpractice occurred. Glamm v. Allen, 57 N.Y.2d 87, 94, 439 N.E.2d 390, 393 (1982).
Given the Continuous Representation Doctrine, it is important to properly effectuate the termination of the attorney-client relationship. It will start the clock on the statute of limitations and potentially establish a defense to a legal malpractice claim by the former client.
1. Generally, an attorney is not entitled to legal fees when the discharge is for cause. Squeri v. Fournarakis, 170 A.D.2d 444, 444, 565 N.Y.S.2d 232, 233 (2d Dep’t 1991). If the discharge without cause, the attorney is entitled to the fair and reasonable value of serves rendered. Thelen, 24 N.Y.3d at 28, 20 N.E.3d at 270.
2. Terminate and withdraw are used interchangeably, infra.
3. A retainer giving an attorney the right to withdraw at any time and for any reason is construed as requiring good and sufficient cause for withdrawal. Willis, 43 A.D.3d at 1441, 842 N.Y.S.2d at 842.
4. Typically conflicts of interest.
5. Where a request for withdrawal comes late in a proceeding, denial of the request, regardless of sufficient cause, may not be considered an abuse of discretion. See Haskell v. Haskell, 185 A.D.2d 333, 333, 586 N.Y.S.2d 630, 630–31 (2d Dep’t 1992).
6. The manner of service deemed reasonable is determined by the Court on a case-by-case basis. Wong v. Wong, 213 A.D.2d 399, 400, 622 N.Y.S.2d 985, 986 (2d Dep’t 1995).
Disclaimer: This is intended to educate generally on certain issues and is not intended to provide legal or professional advice. The information and opinions expressed in this document are solely those of the author and do not necessarily represent the view or opinions of any current or former clients of Segal McCambridge Singer & Mahoney, Ltd.