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Attorney E-Newsletter

April 2006

RPC 1.16: Termination of the Attorney-Client Relationship

Rule 1.16 of the Pennsylvania Rules of Professional Conduct governs the termination of client-lawyer relationships. The Ethics 2000 amendments made a few changes of which practitioners should be aware.

Rule 1.16(b)(4) now states that a lawyer may withdraw if the client insists on pursuing a course of action "with which the lawyer has a fundamental disagreement." Previously, the quoted language read "considers imprudent."

Rule 1.16(c) now states that "A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation." The rules of court of most state and Federal courts in Pennsylvania require that withdrawal of counsel of record requires either leave of court or a substitution of counsel. In such tribunals it is not sufficient for a lawyer who is counsel of record to withdraw by unilateral praecipe or oral statement. The Office of Disciplinary Counsel has long taken the position that this requirement is implicit in the rule, but it is now stated explicitly.

RPC 1.16(d) has previously required that at the end of a representation, a lawyer must refund to the client the unearned balance of fees paid in advance. The rule is amended to provide that expenses paid in advance and not incurred must also be refunded.

Comment 6 notes that a client with severely diminished capacity may discharge a lawyer under circumstances where such an action is severely adverse to the client's interests. The Comment urges that the lawyer should "make special effort to help the client consider the consequences and may take reasonably necessary protective action as provided in Rule 1.14."

Recent Rule Changes

Revocation: The Supreme Court of Pennsylvania has amended the Bar Admission Rules and the Rules of Professional Conduct to provide for a new form of discipline - revocation. This is to be imposed in situations where a lawyer is admitted to the practice of law based on some misrepresentation or fraud in the admissions process. The wrongfully admitted lawyer's right to practice law can be revoked, and she or he must reenter the admissions process as if never admitted, with the wrongful admission as an additional factor which may be taken into account in the character and fitness determination. Bar Admission Rule 201; Pa. R.D.E. 203 and 204(a) (36 Pa.Bulletin 1642, April 8, 2006).

Challenges to Subpoenas: The Disciplinary Board has adopted new timelines for filing and determining challenges to subpoenas. Motions to challenge a subpoena must be filed within ten (10) days of service of the subpoena. 36 Pa.B. 1490 (April 1, 2006).

Attorney Registration: 2006-2007

The 2006-2007 PA Attorney's Annual Fee form will be mailed on or before May 15. The Annual Fee is $175.00.

Forms must be signed and fully completed or they will be returned with possible accrual of late fees and penalties, which may range from $100.00 to $200.00. Checks returned for insufficient funds or other reasons will result in a penalty of $50.00.

Only checks or money orders are acceptable. The Disciplinary Board does not offer a credit card option. Please allow at least 4-6 weeks processing time to receive a new validated license card.

The address checked on the fee form will be accessible on the Internet through searches performed at the Disciplinary Board Web site and by written or verbal request. It may also be used by various case management systems of the Unified Judicial System for the purpose of sending communications and notices.

Tip Of The Month: Who Owns the File?

At the conclusion of a representation, many clients will ask to receive their file. Whose property is the file? In the case of Maleski by Chronister v. Corporate Life Ins. Co., 163 Pa.Cmwlth. 36, 641 A.2d 1 (1994), the Commonwealth Court held that when the client has paid for the lawyer's services, the entire file, including notes and memoranda, is the property of the client and must be turned over to the client:

Notes and memoranda are part of the package of goods and services which a client purchases when they retain legal counsel. The client is entitled to the full benefit of that for which they pay. We therefore believe that once a client pays for the creation of a legal document, and it is placed in the client's file, it is the client, rather than the attorney who holds a proprietary interest in that document. When a client requests that its property held by an attorney be turned over, under Rule 1.15(b), the attorney must comply. 641 A.2nd at 6.