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
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
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;
repugnant or imprudent;
services and has been given reasonable warning that the lawyer will withdraw unless the obli-
gation is fulfilled;
lawyer or has been rendered unreasonably difficult by the client;
lawyer.
good cause for terminating the representation.
reasonably practicable to protect a client's interests, including:
counsel;
by the lawyer for the client and for which the lawyer has been compensated;
(3) promptly surrendering any other work product prepared by the lawyer for the client,
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;
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)
PROPOSED RULE 1.17
SALE OF A LAW PRACTICE
conditions are satisfied:
the practice has been conducted; and
the buyer with written notice of the fee agreement with each of the seller’s clients and any
other agreements relating to each client’s representation; and
client's right to retain other counsel or to take possession of the file, and the fact that the
client’s consent to representation by the purchaser will be presumed if the client does not
take any action or does not otherwise object within thirty (30) days of receipt of the notice.
the purchaser only upon entry of an order so authorizing by a court having jurisdiction or
by the presiding judge in the judicial district in which the seller resides. The seller may
disclose to the court in camerainformation relating to the representation only to the extent
necessary to obtain an order authorizing the transfer of a file.
client shall not be increased by reason of the sale, and the purchasing lawyer shall abide by
any agreements between the selling lawyer and the client with respect to the representation
as are permitted by these rules and of which the purchasing lawyer was given notice prior to
the transfer of the representation.
[1] The practice of law is a profession, not merely a business. Clients are not commodities
that can be purchased and sold at will. Pursuant to this Rule, when a lawyer or an entire firm ceases
to practice and another lawyer or firm takes over the representation, the selling lawyer or firm may
obtain compensation for the reasonable value of the practice as may withdrawing partners of law
firms. See Rules 5.4 and 5.6.
[2] The requirement that all of the private practice be sold is satisfied if the seller in good
faith makes the entire practice available for sale to the purchaser. The fact that a number of the
seller's clients decide not to be represented by the purchaser but take their matters elsewhere,
therefore, does not result in a violation. Neither does a return to private practice as a result of an
unanticipated change in circumstances result in a violation. For example, a lawyer who has sold the
practice to accept an appointment to judicial office does not violate the requirement that the sale be
attendant to cessation of practice if the lawyer later resumes private practice upon being defeated in
a contested or a retention election for the office.
[3] The requirement that the seller cease to engage in the private practice of law does not
prohibit employment as a lawyer on the staff of a public agency or a legal services entity which
provides legal services to the poor, or as in-house counsel to a business.
[4] The Rule permits a sale attendant upon retirement from the private practice of law within
the jurisdiction. Its provisions, therefore, accommodate the lawyer who sells the practice upon the
occasion of moving to another state. Tennessee is sufficiently large that a move from one locale
therein to another is tantamount to leaving the jurisdiction in which the lawyer has engaged in the
practice of law. To also accommodate lawyers so situated, the Rule permits the sale of the practice
when the lawyer leaves the geographic area in which he or she is practicing as well as when the
lawyer leaves the state.
[5] The Rule requires a single purchaser. The prohibition against piecemeal sale of a
practice protects those clients whose matters are less lucrative and who might find it difficult to
secure other counsel if a sale could be limited to substantial fee-generating matters. The purchaser
is required to undertake all client matters in the practice, subject to client consent. If, however, the
purchaser is unable to undertake all client matters because of a conflict of interest in a specific
matter respecting which the purchaser is not permitted by Rule 1.7 or another rule to represent the
client, the requirement that there be a single purchaser is nevertheless satisfied.
[6] Negotiations between seller and prospective purchaser prior to disclosure of information
relating to a specific representation of an identifiable client no more violate the confidentiality
provisions of Model Rule 1.6 than do preliminary discussions concerning the possible association
of another lawyer or mergers between firms, with respect to which client consent is not required.
Providing the purchaser access to client-specific information relating to the representation and to the
file, however, requires client consent. The Rule provides that before such information can be
disclosed by the seller to the purchaser the client must be given actual written notice of the
contemplated sale, including the identity of the purchaser and any proposed change in the terms of
future representation, and must be told that the decision to consent or make other arrangements
must be made within 30 days. If nothing is heard from the client within that time, consent to the sale
is presumed.
[7] A lawyer or law firm ceasing to practice cannot be required to remain in practice because
some clients cannot be given actual notice of the proposed purchase. Since these clients cannot
themselves consent to the purchase or direct any other disposition of their files, the Rule requires an
order from a court having jurisdiction authorizing their transfer or other disposition. The Court can
be expected to determine whether reasonable efforts to locate the client have been exhausted, and
whether the absent client's legitimate interests will be served by authorizing the transfer of the file so
that the purchaser may continue the representation. Preservation of client confidences requires that
the petition for a court order be considered in camera.
[8] All the elements of client autonomy, including the client's absolute right to discharge a
lawyer and transfer the representation to another, survive the sale of the practice.
[9] The sale may not be financed by increases in fees charged the clients of the practice.
Existing agreements between the seller and the client as to fees and the scope of the work must be
honored by the purchaser, unless the client consents after consultation.
[10] Lawyers participating in the sale of a law practice are subject to the ethical standards
applicable to involving another lawyer in the representation of a client. These include, for example,
the seller's obligation to exercise competence in identifying a purchaser qualified to assume the
practice and the purchaser's obligation to undertake the representation competently (see Rule 1.1);
the obligation to avoid disqualifying conflicts, and to secure client consent after consultation for
those conflicts which can be agreed to (see Rule 1.7); and the obligation to protect information
relating to the representation (see Rules 1.6 and 1.9).
[11] If approval of the substitution of the purchasing attorney for the selling attorney is
required by the rules of any tribunal in which a matter is pending, such approval must be obtained
before the matter can be included in the sale (see Rule 1.16).
[12] This Rule applies to the sale of a law practice by representatives of a deceased, disabled
or disappeared lawyer. Thus, the seller may be represented by a non-lawyer representative not
subject to these Rules. Since, however, no lawyer may participate in a sale of a law practice which
does not conform to the requirements of this Rule, the representatives of the seller as well as the
purchasing lawyer can be expected to see to it that the requirements are met.
[13] Admission to or retirement from a law partnership or professional association,
retirement plans and similar arrangements, and a sale of tangible assets of a law practice, do not
constitute a sale or purchase governed by this Rule.
[14] This Rule does not apply to the transfers of legal representation between lawyers when
such transfers are unrelated to the sale of a practice.
See Rule 1.0(b)
“Consultation”See Rule 1.0(c)
“Law Firm”See Rule 1.0(d)