Ethical Considerations In Divorce And Family Law


Mandatory and Permissive Withdrawal of Legal Representation

A lawyer must withdraw from representation if any of three circumstances exist. First, if the representation will result in violation of the RPC. Second, if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. Third, if the client discharges the lawyer. Colo. RPC 1.16(a).

Permissive withdrawal may occur when the attorney is in compliance with Colo. RPC 1.16(b). Seven circumstances are described in the rule. I will touch on only a few. A lawyer may withdraw if the withdrawal can be accomplished without material adverse effect on the interests of a client. A lawyer may also withdraw if the client fails substantially to fulfill an obligation to the lawyer. These permissive reasons for withdrawal are tempered by the tribunal’s authority to order the attorney to continue the representation (Colo. RPC 1.16(c)). In short, if you plan to get out of the case do so well in advance of any hearing. I recommend seeking withdrawal at least 90 days prior to any hearing of the matter.

Permissive withdrawal is also allowed when the client persists in a course of action involving the lawyer’s services that the lawyer believes to be fraudulent. This circumstance may require a “noisy withdrawal.” If the client intends to present false testimony or evidence, the attorney may not participate, and has a duty to the court to correct false statements (Colo. RPC 3.3). The attorney must also keep client confidentiality (Colo. RPC 1.16). Thus, the attorney should cite as the basis of withdrawal that “professional considerations require termination.” Ordinarily, this should be sufficient.

© 2011 Richard M. Arnold, Arnold & Arnold, LLP, Attorneys at Law