1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229-231
reasons why such lawyer does not maintain such a pooled depository account. A
copy of such declination to participate in the IOLTA program, or statement that no
such pooled depository account is maintained shall be transmitted to the Tennessee
Bar Foundation by the Board of Professional Responsibility.
The Board of Professional Responsibility, acting in concert with the Tennessee
Bar Foundation, may promulgate such forms and procedures as will implement
paragraphs this Rule and Rule 1.15 of the Rules of Professional Conduct,
Tennessee Supreme Court Rule 8.
Paragraph (b):Paragraph (b) is substantially similar to DR 9-102(B)(1), (3) and (4), but
the Committee has added a clause making it clear that if there is a dispute between the client and
third person, the lawyer must keep the disputed funds separate pending resolution of the dispute.
Paragraph (c) is similar to DR 9-102(A)(2).
Paragraph (a) contains all the substance of ABA Model Rule 1.15(a),but has been
reorganized and supplemented to account for current Tennessee law with respect to overdraft
notification and the Interest On Lawyers Trust Accounts (IOLTA) program. Paragraphs (b) and (c)
track ABA Model Rule l.15(b) and (c).
The Committee has deleted Comment [5] that read: A "client's security fund" provides a
means through the collective efforts of the bar to reimburse persons who have lost money or
property as a result of dishonest conduct of a lawyer. Where such a fund has been established, a
lawyer should participate.”This Comment is not needed because Tennessee’s Client Security
Fund is financed by a mandatory assessment imposed on all lawyers.
A sentence has been added to Comment [3] alerting lawyers to the possibility of filing an
interpleader action to resolve a dispute between the lawyer’s client and a third party about their
respective entitlement to funds held by the lawyer.
Made
The Committee has deleted the second sentence in Paragraph (c) as surplusage and has
made minor editorial changes to Comments [1] and [2]. Helpful language paralleling DR 9-
102(A)(1) has been added to Paragraph (a)(1).
PROPOSED RULE 1.16
DECLINING AND TERMINATING REPRESENTATION
has commenced, shall withdraw from the representation of the client if:
other law; or
represent the client; or
the withdrawal can be accomplished without material adverse effect on the interests of the client or
if:
reasonably believes is criminal or fraudulent; or
repugnant or imprudent; or
services and has been given reasonable warning that the lawyer will withdraw unless the obli-
gation is fulfilled; or
lawyer or has been rendered unreasonably difficult by the client; or
lawyer.
good cause for terminating the representation.
reasonably practicable to protect a client's interests, including:
counsel, and
by the lawyer for the client and for which the lawyer has been compensated; and
provided, however, that the lawyer may retain such work product to the extent permitted by
affect on the client with respect to the subject matter of the representation; and
incurred by the lawyer; and
[1] A lawyer should not accept representation in a matter unless it can be performed
competently, promptly, without improper conflict of interest and to completion.
[2] A lawyer ordinarily must decline or withdraw from representation if the client demands
that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or
other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such
a course of conduct; a client may make such a suggestion in the hope that a lawyer will not be
constrained by a professional obligation.
[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires
approval of the appointing authority. See also Rule 6.2. Difficulty may be encountered if
withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The
court may wish an explanation for the withdrawal, while the lawyer may be bound to keep
confidential the facts that would constitute such an explanation. The lawyer's statement that
professional considerations require termination of the representation ordinarily should be accepted
as sufficient.
[4] A client has a right to discharge a lawyer at any time, with or without cause, subject to
liability for payment for the lawyer's services. Where future dispute about the withdrawal may be
anticipated, it may be advisable to prepare a written statement reciting the circumstances.
[5] Whether a client can discharge appointed counsel may depend on applicable law. A
client seeking to do so should be given a full explanation of the consequences. These consequences
may include a decision by the appointing authority that appointment of successor counsel is
unjustified, thus requiring the client to proceed without assistance of counsel.
[6] If the client is mentally incompetent, the client may lack the legal capacity to discharge
the lawyer, and in any event the discharge may be seriously adverse to the client's interests. The
lawyer should make special effort to help the client consider the consequences and, in an extreme
case, may initiate proceedings for a conservatorship or similar protection of the client. See Rule
1.14.
[7] A lawyer may withdraw from representation in some circumstances. The lawyer has the
option to withdraw if it can be accomplished without material adverse effect on the client's interests.
Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably
even if the lawyer does not further it. Withdrawal is also permitted if the lawyer's services were
misused in the past even if that would materially prejudice the client. The lawyer also may withdraw
where the client insists on a repugnant or imprudent objective or action.
[8] A lawyer may withdraw if the client refuses to abide by the terms of an agreement
relating to the representation, such as an agreement concerning fees or court costs or an agreement
limiting the objectives of the representation. The lawyer must, however, give the client reasonable
notice of the lawyer’s intention to withdraw.
[9] Even if the lawyer has been unfairly discharged by the client, a lawyer must take all
reasonable steps to mitigate the consequences to the client. The lawyer may retain papers as security
for a fee only to the extent permitted by law.
[10] Whether or not a lawyer for an organization may under certain unusual circumstances
have a legal obligation to the organization after withdrawing or being discharged by the
organization's highest authority is beyond the scope of these Rules.
See Rule 1.0(b)
“Consultation”See Rule 1.0(c)
“Fraud”and “Fraudulent”See Rule 1.0(e)
“Material” and Materially” See Rule 1.0(g)
“Reasonable”See Rule 1.0(i)
“Reasonably Believes”See Rule 1.0(j)
“Substantial”See Rule 1.0(l)
“Substantially”See Rule 1.0(l)
“Tribunal”See Rule 1.0(m)
Paragraph (a): With respect to the mandatory obligation to decline a representation, DR
2-109(A) provides that a lawyer "shall not accept employment . . . if the lawyer knows or it is
obvious that [the prospective client] wishes to . . . [b]ring a legal action . . . or otherwise have steps
taken, merely for the purpose of harassing or maliciously injuring any person . . . . or [p]resent a
claim or defense . . . that is not warranted under existing law, unless it can be supported by good
faith argument for an extension, modification, or reversal of existing law." With respect to
mandatory withdrawal from a representation, DR 2-110(B) provides that “[a] lawyer representing a
client before a tribunal, with its permission if required by its rules, shall withdraw from employment
if: (1) the lawyer knows or it is obvious that the client is bringing the legal action, conducting the
defense, or is asserting a position in the litigation or is otherwise having steps taken, merely for the
purpose of harassing or maliciously injuring any person; (2) the lawyer knows or it is obvious that
continued employment will result in violation of a Disciplinary Rule; (3) the lawyer’s mental or
physical condition renders it unreasonably difficult for him to carry out the employment effectively;
or (4) the lawyer is discharged by his client."
Paragraph (b): There is no comparable right to withdraw or seek permission of a tribunal to
withdraw “without cause” in the Disciplinary Rules.
The enumerated causes for permissive withdrawal compare to the Disciplinary Rules as
follows:
Paragraph (b)(1): Subparagraph (b)(1) permits withdrawal if “the client persists in a course
of action involving the lawyer's services that the lawyer reasonably believes is criminal or
fraudulent.”DR 2-110(C)(1), on the other hand, permits withdrawal if the client insists on
presenting a claim or a 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.” DR 2-110(c)(1)(b)
permits withdrawal “if the client personally seeks to pursue an illegal course of conduct.”DR 2-
110(C)(1)(c) permits withdrawal if the client insists that the lawyer pursue a course of conduct that
is illegal or that is prohibited under the Disciplinary Rules.
Paragraph (b)(3): DR 2-110(C)(1)(e) permits withdrawal the client “[i]nsists, in a matter
not pending before a tribunal, that the lawyer engage in conduct that is contrary to the judgment and
advice of the lawyer but not prohibited under the Disciplinary Rules.” This is consistent with the
reference in Subparagraph (b)(3) to imprudent conduct, to which has been added the reference to
repugnant conduct.
Paragraph (b)(4):DR 2-110(C)(1)(f) permits withdrawal if the client “deliberately
disregards an agreement or obligation to the lawyer as to expenses and fees.”
Paragraph (b)(5):DR 2-110(C)(1)(d) permits withdrawal if the client engages in “conduct
that renders it unreasonably difficult for the lawyer to carry out the employment effectively.”There
is no counterpart in the Disciplinary Rules to the Subparagraph (b)(5)’s grant of permission to
withdraw if the representation with result in an unanticipated and substantial financial burden.
Paragraph (b)(6): DR 2-110(C)(6) permits withdrawal exists if “[t]he lawyer believes in
good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of
other good cause for withdrawal.”
Paragraph (b)(7): DR 2-110(C)(5) permits withdrawal if the lawyer’s “client knowingly
and freely assents to termination of the employment.”
Paragraph (c): DR 2-110(A)(1) provides: "If permission for withdrawal from employment
is required by the rules of a tribunal, the lawyer shall not withdraw without its permission."
1. The Proposed Rule deals more specifically with the lawyer’s responsibilities and
rights with respect to client papers, property, and work product the lawyer has prepared in
the course of the representation.
2. The Proposed Rule also provides that the lawyer may not exercise his or her right
to retain papers if so doing would have a materially adverse effect on the client with respect
to the subject matter in which the lawyer was representing the client.
Paragraph (b)(3) broadens the Model Rule by permitting withdrawal if a client insists upon
pursuing an objective or taking action that the lawyer considers repugnant or imprudent.
Paragraph (b)(5) is more restrictive than Model Rule 1.16(b)(5) in that it only permits
withdrawal if the representation will result in an “unanticipated and substantial” financial burden..
Paragraph (a): References to Proposed Rule 6.2 and seeking the permission of a tribunal
were deleted as an unnecessary departure from ABA Model Rule 1.16(a).
Paragraph (b): To eliminate another unnecessary departure from ABA Model Rule 1.16,
Paragraphs (B) and (C) in the preliminary draft have been combined into Paragraph (b) from which
the references to Proposed Rule 6.2 and seeking permission of a tribunal have been deleted.
Subparagraphs (b)(1) and (b) have also been modified to conform to the Model Rule.
Paragraph (D): This paragraph, which addressed confidentiality issues as might
arise when a lawyer seeks a tribunal’s permission, has been deleted as redundant. These
issues are adequately addressed by Proposed Rules 1.6 and 3.3.
Paragraph (F):Paragraph (F), which required lawyers associated in a form to take
action to protect firm clients when a lawyer who is handling the matter for the firm leaves
the firm, has been deleted. The Committee has concluded that this issue can be adequately
handled in terms of the lawyer’s duty under Proposed Rule 1.4 to keep the client
reasonably advised about the status of the representation.
Made
The Attorney General has voiced concern that Rule 1.16 may impose restrictions on the
freedom of the Attorney General to terminate the representation by his office of a state agency or
official in circumstances in which a potential conflict of interest exists or an employee is deemed to
have acted outside the scope of his or her employment. The Committee sees no need to change this
Rule in response to the Attorney General’s concern because Paragraph (b)(6) permits withdrawal
for “other good cause.”Compliance by the Attorney General with the responsibilities of his office
should be deemed good cause for withdrawal in those situations in which withdrawal would have an
adverse effect on the client. More generally, however, the Committee believes that the extent to