Ethical Issues in Withdrawing from a Representation

Arthur D. Burger | Jackson & Campbell, P.C

Mr. Burger is a national leader in legal ethics, legal malpractice, and the law governing lawyers. He has been representing prominent law firms and lawyers for over two decades. Selected repeatedly as a Best Lawyer® in Ethics and Professional Responsibility by Best Lawyers of America© and as a Super Lawyer® in Professional Liability Defense, Art litigates in the areas of legal malpractice, fiduciary duties, motions to disqualify, internal law firm disputes, and Bar disciplinary proceedings. He also serves as outside counsel to law firms and provides guidance regarding potential conflicts of interest and other ethical dilemmas.

In addition to his experience as a practitioner, Art has a deep background in the jurisprudence of ethics law. He was a member of the Editorial Board of the ABA/Bloomberg Law-Lawyers’ Manual on Professional Conduct and is an Adjunct Professor at the Antonin Scalia Law School of George Mason University, teaching a night class in Professional Responsibility. He was a member of the ten-person American Bar Association (ABA) Committee on Ethics and Professional Responsibility from 2014 to 2017; an elected District of Columbia Bar Delegate to the ABA House of Delegates from 2011 to 2012, where he worked with the ABA Ethics 20/20 Commission; a member of the District of Columbia Bar Legal Ethics Committee from 2003 to 2009; a member of the District of Columbia Bar Rules of Professional Conduct Review Committee from 1998 to 2004; and he has taught numerous District of Columbia Bar continuing legal education courses (CLE) on legal ethics and has lectured around the country.

Art also serves as an expert witness on legal ethics and the standard of care for lawyers. In Diamond Resorts vs. Newton Group Transfers, LLC, 2022 WL 1642865 (S.D. Fla. 2022), the court found him “more than qualified to give his expert opinion in matters of legal ethics.”

German Gomez | White & Case LLP

German Gomez is currently an Associate General Counsel at White & Case, an international law firm with over 2,800 lawyers working in more than 30 offices around the world.

German is responsible for analyzing and resolving complex ethics, professional responsibility, compliance, regulatory, reputational, and risk management issues for the firm.

Prior to that, German was the Chief Human Resources Officer (CHRO) for Hogan Lovells, an international law firm with over 2,400 lawyers working in more than 40 offices around the world. German was responsible for developing and implementing human resources initiatives and strategies that enable the Firm to deliver on its goals and priorities in the Americas. As an Assistant General counsel at Hogan Lovells, German was also responsible for analyzing and resolving complex ethics, professional responsibility, compliance, regulatory, reputational, and risk management issues for the firm.

Before joining Hogan Lovells, German served as an Assistant General Counsel with the General Counsel’s office at the U.S. Department of Justice (DOJ) provided legal advice and counsel to the U.S. Attorneys and other senior managers responsible for supervising approximately 6,000 assistant U.S. Attorneys employed in the 94 United States Attorneys’ offices located throughout the United States, Puerto Rico, Guam, and the U.S. Virgin Islands. He advised and counseled on a wide variety of matters involving professional responsibility, legal ethics, and conflicts of interest rules and regulations. German also provided advice and counsel on the interpretation and application of federal employment laws and regulations and defended clients in employment litigation involving claims of discrimination, sexual harassment, retaliation, and whistleblowing before the Equal Employment Opportunity Commission (EEOC) and Merit System Protection Board (MSPB).

German received his A.B. in Political Science from Columbia University, a J.D. from Fordham University, and an M.P.S. in Human Resources Management from Georgetown University. His master’s thesis topic was “The Impact of Unconscious Racial Bias in the U.S. Workforce”.

I. Circumstances in which withdrawal may be appropriate | 2:00pm – 2:30pm

• A client’s conduct and intentions present ethical dilemmas
• A client’s lack of cooperation or disruptive behavior creates undue stress or causes pointless effort
• The client’s position is shown to lack evidentiary support
• Clients who are unwilling to meet their obligation to pay fees or to cooperate

II. When withdrawal becomes mandatory under Rule 1.16(a) and not merely permissive | 2:30pm – 3:00pm

• When continued representation would lead to a violation of the rules of professional conduct
• When a lawyer becomes disabled
• When a client fires the lawyer
• When a client is using the lawyer’s services to advance a crime or fraud

Break | 3:00pm – 3:10pm

III. Issues in effectuating withdrawal | 3:10pm – 3:40pm

• Providing notice to a client of an intent to withdraw and providing the client an opportunity to address concerns
• Withdrawal when a matter does not involve representation before a tribunal
• When in litigation, determining whether leave of court is required
• Reconciling the duty of confidentiality when moving to withdraw

IV. Duties upon withdrawal | 3:40pm – 4:10pm

• Returning papers and property
• Cooperating with new counsel
• Avoiding undue prejudice
• “Noisy withdrawal”