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Rule 1.16 Declining or Terminating Representation

(Rule Approved by the Supreme Court, Effective November 1, 2018)

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where

representation has commenced, shall withdraw from the representation of a client

if:

(1) the lawyer knows* or reasonably should know* that the client is bringing an

action, conducting a defense, asserting a position in litigation, or taking an

appeal, without probable cause and for the purpose of harassing or

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a

client if:

(1) the client insists upon presenting a claim or defense in litigation, or

asserting a position or making a demand in a non-litigation matter, that is

not warranted under existing law and cannot be supported by good faith

argument for an extension, modification, or reversal of existing law;

(2) the client either seeks to pursue a criminal or fraudulent* course of conduct

or has used the lawyer’s services to advance a course of conduct that the

lawyer reasonably believes* was a crime or fraud;*

(3) the client insists that the lawyer pursue a course of conduct that is criminal

the client fulfills the agreement or performs the obligation;

(6) the client knowingly* and freely assents to termination of the representation;

(7) the inability to work with co-counsel indicates that the best interests of the

client likely will be served by withdrawal;

This rule was superseded by order of the

Supreme Court, effective June 1, 2020. The

current version of the rule can be found here.

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(8) the lawyer’s mental or physical condition renders it difficult for the lawyer to

carry out the representation effectively;

(9) a continuation of the representation is likely to result in a violation of these

rules or the State Bar Act; or

(10) the 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.

(c) If permission for termination of a representation is required by the rules of a

tribunal,* a lawyer shall not terminate a representation before that tribunal* without

(1) subject to any applicable protective order, non-disclosure agreement,

experts’ reports and other writings,* exhibits, and physical evidence,

whether in tangible, electronic or other form, and other items reasonably*

necessary to the client’s representation, whether the client has paid for

them or not; and

(2) the lawyer promptly shall refund any part of a fee or expense paid in

advance that the lawyer has not earned or incurred. This provision is not

applicable to a true retainer fee paid solely for the purpose of ensuring the

availability of the lawyer for the matter.

Comment

[1] This rule applies, without limitation, to a sale of a law practice under rule 1.17. A

obligated under paragraph (a)(1) to withdraw from representing a client because the

lawyer has a conflict of interest under rule 1.7, but that conflict might not arise in other

representations of the client.

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[3] Withdrawal under paragraph (a)(1) is not mandated where a lawyer for the

defendant in a criminal proceeding, or the respondent in a proceeding that could result in

incarceration, or involuntary commitment or confinement, defends the proceeding by

requiring that every element of the case be established. (See rule 3.1(b).)

[4] Lawyers must comply with their obligations to their clients under Business and

Professions Code section 6068, subdivision (e) and rule 1.6, and to the courts under rule

3.3 when seeking permission to withdraw under paragraph (c). If a tribunal* denies a

lawyer permission to withdraw, the lawyer is obligated to comply with the tribunal’s* order.

(See Bus. & Prof. Code, §§ 6068, subd. (b) and 6103.) This duty applies even if the

lawyer sought permission to withdraw because of a conflict of interest. Regarding

[6] Paragraph (e)(1) does not prohibit a lawyer from making, at the lawyer’s own

expense, and retaining copies of papers released to the client, or to prohibit a claim for

the recovery of the lawyer’s expense in any subsequent legal proceeding.

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NEW RULE OF PROFESSIONAL CONDUCT 1.16

this evaluation is proposed rule 1.16 (Declining or Terminating Representation).

Rule As Issued For 90-day Public Comment

Proposed rule 1.16 follows the substance and format of ABA Model Rule 1.16 while carrying

forward certain concepts found in current rule 3-700. Similar to ABA Model Rule 1.16, proposed

rule 1.16 applies to both the acceptance and termination of a representation. The proposed rule

follows the format of ABA Mode Rule 1.16 in that situations mandating withdrawal are set forth in

paragraph (a) while permissive withdrawal situations are addressed in paragraph (b). The

provisions in current rule 3-700(A)(1) and (A)(2) concerning seeking a tribunal’s permission to

“reasonably should know” for the current rule’s “should know.

Paragraph (a)(2) carries forward the substance of current rule 3-700(B)(2), which prohibits a

lawyer from representing a client where doing so violates that lawyer’s ethical obligations. In

addition to formatting changes, the proposed rule substitutes the defined term “reasonably

should know” for the current rule’s “should know.”

Paragraph (a)(3) carries forward the substance of current rule 3-700(B)(3), which provides that a

lawyer shall not represent a client if the lawyer’s mental or physical condition renders the lawyer

ineffective.

Paragraph (b)(1) carries forward the substance of current rule 3-700(C)(1)(a) but clarifies that a

lawyer’s ability to withdraw based on a client’s pursuit of a meritless claim applies in both

litigation and non-litigation matters.

Paragraphs (b)(2) and (b)(3) carry forward the substance of current rule 3-700(C)(1)(b) and (c),

but add concepts derived from ABA Model Rule 1.16 which permit withdrawal based on

fraudulent as well as unlawful conduct.

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Paragraph (b)(5) expands the breadth of current rule 3-700(C)(1)(f) by adopting the concepts in

Paragraph (b)(7) carries forward current rule 3-700(C)(3), which permits withdrawal if a lawyer is

unable to work with co-counsel.

Paragraph (b)(8) permits withdrawal for the reasons stated in paragraph (a)(3).

Paragraph (b)(9) permits withdrawal for the reasons stated in paragraph (a)(2).

Paragraph (b)(10) permits withdrawal from cases pending before a tribunal on the grounds that

the lawyer has a good faith belief that the tribunal will find good cause for withdrawal.

prejudice to the client.

Paragraphs (e)(1) and (e)(2) carry forward current rule 3-700(D)(1) and (D)(2), which provide

that a lawyer must promptly return a client’s file and property and promptly refund any unearned

fees. Paragraph (e)(1) has been modified to provide that “client materials and property” includes

those stored electronically. Paragraph (e)(2) has been modified to require the return of any

unused advanced expenses.

Comment [1] clarifies that the rule applies to the sale of a law practice.

Comment [2] explains that withdrawal from one client matter does not necessarily require

Comment [4] provides citations to certain statutes that place limits on a lawyer’s duty to provide

the client with the file upon withdrawal.

Comment [5] carries forward current rule 3-700, discussion paragraph 3, regarding a lawyer’s

right to make a copy of the client’s file and seek recovery of the lawyer’s expense for doing so.

Revisions Following 90-Day Public Comment Period

After consideration of comments received in response to the initial 90-day public comment

period, the Commission revised subparagraph (b)(4) to substitute the word “representation”

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the latter might suggest the presence of an actual employer-employee relationship when the

determined that the reference to non-disclosure obligations arising from a “statutory

limitation” was too narrow. The phrase “statute or regulation” was considered to be a broader

In the rule Comments, the Commission added a new Comment [3] to clarify that the

mandatory withdrawal provision in subparagraph (a)(1) does not mandate withdrawal where

a lawyer for a defendant in a criminal or similar proceeding defends the proceeding by

requiring that every element of the case be established.

With these changes, the Board authorized an additional 45-day public comment period on

Final Commission Action on the Proposed Rule Following 45-Day Public Comment

Period

comment period, the Commission made no changes to the proposed rule and voted to

recommend that the Board adopt the proposed rule.

The Board adopted proposed rule 1.16 at its March 9, 2017 meeting.

Supreme Court Action (May 10, 2018)

The Supreme Court approved the rule as modified by the Court to be effective November 1,

were added.