Wisconsin Lawyer: Ethics Threat to File Complaint Does Not Automatically Require Withdrawal:

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Format: MM/DD/YYYY
    February
    01
    2015

    Ethics
    Threat to File Complaint Does Not Automatically Require Withdrawal

    A lawyer must carefully appraise the circumstances of a case to determine if the dissatisfied client’s interests are better served by continuing or by withdrawing from the representation.

    Dean Dietrich

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    frustrationQuestion

    A client is making threats of filing a complaint against me with the Office of Lawyer Regulation. Should I withdraw from representing the client?

    Answer

    When a situation like this arises, the Rules of Professional Conduct do not provide a clear answer, and the lawyer may want to consider “business factors” when deciding the best course of action.

    If a client is dissatisfied with the lawyer’s conduct and is suggesting that he or she will file a complaint with the Office of Lawyer Regulation (OLR), there is not an automatic requirement that the lawyer withdraw from representing the client. It will depend very much on the facts and circumstances of the representation. In fact, there may be instances in which the lawyer cannot withdraw from representation because of the potential negative impact or harm that could occur to the client if the withdrawal takes place.

    Dean R. Dietrichcom ddietrich ruderware Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

    The requirements of SCR 20:1.7(a) and (b) are what affect the lawyer’s analysis. Under these Rules, the lawyer must avoid conflicts of interest when representing the client and cannot continue representation if the representation is materially limited by another interest of the lawyer. The analysis here is based on whether the lawyer has a “personal conflict of interest” that prevents the lawyer from continuing to represent the client who has threatened an OLR complaint.

    The lawyer must assess whether his or her ability to represent the client is adversely affected by his or her personal interest (of avoiding an OLR complaint) and whether the representation of the client is “materially limited” by the lawyer’s personal interest.

    “The lawyer must assess whether his or her ability to represent the client is adversely affected by his or her personal interest.”

    In most situations, business considerations would suggest that the lawyer should not continue to represent the client if the client is apparently dissatisfied with the lawyer’s conduct or performance and has threatened the filing of an OLR complaint. It would seem that the better course of action would be to withdraw from representation and avoid any claim that the lawyer is acting with an inappropriate motive (that is, in order to protect the lawyer’s interests rather than to advocate for the client).

    There may be situations, however, in which withdrawal is not the preferable option, for example, if the representation has been lengthy or if the client wants the lawyer to continue with the representation because of the lawyer’s expertise and the time that the lawyer has already invested in the representation. If, because of the client’s request, the lawyer decides not to withdraw, the lawyer should communicate in writing with the client, indicating that the lawyer has been directed to continue the representation because of potential losses or harm to the client even though the client is expressing a desire to file a complaint about the lawyer’s conduct.

    Business considerations seem to come into play far more than ethical considerations in this scenario. Other states have recognized this and issued opinions indicating that a lawyer could represent a client even though the client has threatened the filing of a disciplinary complaint but that each case would require an individual assessment of the facts and circumstances surrounding the potential complaint and the nature and scope of the representation being provided.

    The same type of analysis would apply if a client is suggesting that the lawyer has committed legal malpractice, although the argument for withdrawal seems more clearcut in that situation. Each case must be individually analyzed to assess whether withdrawal is appropriate, with the understanding that the lawyer cannot withdraw if the client would be harmed because of the withdrawal.




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