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Ethics Opinions from the Bar Association of San Francisco

INFORMAL OPINION 1973-5

Withdrawal of a full-time staff attorney of San Francisco Neighborhood Legal Assistance Foundation as attorney of record from approximately 4,000 pending domestic proceedings, on termination of employment, must comply with usual procedures in each case.

QUESTION:
A full-time staff attorney of San Francisco Neighborhood Legal Assistance Foundation is terminating employment and has requested an opinion and advice regarding withdrawal as counsel in approximately 4,000 pending domestic relations proceedings in which she is the attorney of record. Because the foundation is not a professional corporation or law firm, it does not appear as the attorney of record; however, its name occasionally appears just under the attorney's name, as part of the attorney's address. On some of the pleadings the attorney appears as co-counsel with another attorney employed by the foundation who terminated such employment nine months ago without taking any steps to withdraw from the cases. Contact has been lost with approximately 40% of the clients. Few of them relate to the attorney by name, but merely as the foundation attorney engaged. None of the clients has been asked to pay a fee. Approximately 40% of the clients have paid filing costs.

Must a hearing to withdraw be noticed to each client, and an order be entered in each file? The administrative burden of handling each file individually would fall on the county clerk and the local bench as well as on the attorney inquiring.

 

CCP 284 and 285 fix the general requirements for a change of attorney of record.

CCP 285.1 fixes the requirements for withdrawal of an attorney of record in domestic relations matters after a judgment, other than an interlocutory judgment, has become final, and prior to service upon him of papers in any proceeding then pending.

No relief from these statutory requirements appears available by reason of the multiplicity of separate actions on file involving the same attorney of record. It appears necessary that a client's consent to the attorney's withdrawal be obtained whether the attorney is of record in one action or in several thousand actions.

No authority has been located permitting notice by publication in the instant situation; nor does a form of class action appear available to avoid the administrative burden to the attorney, the county clerk, and the court.

The foregoing deals only with statutory requirements. The legal ethics considerations are not dealt with in the California State Bar Act, Bus. & Prof. C. §6000 et seq-. nor in the California Rules of Professional Conduct ; but Rule I directs attention to the ABA Code of Professional Responsibility regarding conduct not mentioned in our California rules.

ABA Code of Professional Responsibility, Disciplinary Rule 2-110 (which replaced former ABA Canon 44), provides in part:

"(A)(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.

"(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.

 

"(B) Mandatory withdrawal.

"(C) Permissive withdrawal.

If DR 2-110(B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such request or such withdrawal is because:

"(6) He believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal."

ABA Code of Professional Responsibility, Ethical Considerations 2-32 provides in part:

"A decision by a lawyer to withdraw should be made only on the basis of compelling circumstances, and in a matter pending before a tribunal he must comply with the rules of the tribunal regarding withdrawal. A lawyer should not withdraw without considering carefully and endeavoring to minimize the possible adverse effect on the rights of his client and the possibility of prejudice to his client as a result of his withdrawal. Even when he justifiably withdraws, a lawyer should protect the welfare of his client by giving due notice of his withdrawal, suggesting employment of other counsel, delivering to the client all papers and property to which the client is entitled, cooperating with counsel subsequently employed, and otherwise endeavoring to minimize the possibility of harm...."

One member of the Legal Ethics Committee has suggested that if the instant attorney decides nonetheless not to comply with the requirements of the Code of Civil Procedure in each file, she should at least seek a single court hearing, publish a single notice in all daily newspapers in the county, of her termination of employment with the foundation, and file in each of the county clerk files in which she is attorney of record: (1) a copy of the published notice, (2) a copy of any order rendered, and (3) the name of the foundation staff attorney who will be assuming responsibility in the absence of affirmative objection by the client. This suggestion, however, is not a recommendation of the committee.

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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