Mandatory withdrawal, permissive withdrawal, and the lawyer's duties on termination including file production.
(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 representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) a client insists upon pursuing an objective that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. Kan. Sup. Ct. R. 226, KRPC 1.16.
Missouri Rule 4-1.16 is substantively identical to KRPC 1.16. Both rules follow ABA Model Rule 1.16, which establishes the same four-part structure: mandatory withdrawal grounds in subdivision (a), permissive withdrawal grounds in subdivision (b), tribunal-permission requirement in subdivision (c), and termination duties in subdivision (d).
Subdivision (a) identifies three circumstances in which withdrawal is mandatory rather than discretionary:
Subdivision (b) identifies seven circumstances in which withdrawal is permitted but not required. The first - withdrawal without material adverse effect on the client's interests - operates as a general permission to withdraw when no harm results. The remaining six identify specific circumstances:
When the representation is before a tribunal that requires notice or permission for termination, the lawyer must comply with that requirement. In federal bankruptcy court, the local rule governing withdrawal applies (see Rule 9010 and discussion of local rules). When ordered by a tribunal to continue representation notwithstanding good cause for termination, the lawyer must do so. The tribunal's order overrides the otherwise-permissive (or even mandatory) grounds for withdrawal, with limited exceptions where continuation would itself violate the rules of professional conduct.
Subdivision (d) is the operative endpoint of any representation. Upon termination - whether by client discharge, by lawyer-initiated withdrawal, or by completion of the matter - the lawyer must take reasonable steps to protect the client's interests. The enumerated steps include:
The client must be informed of the termination and its consequences. Where the termination is lawyer-initiated, this includes informing the client of the basis (to the extent ethically permitted) and the steps the client must take to protect the client's interests.
The withdrawing lawyer must allow time for the client to obtain successor counsel. In matters with pending deadlines or hearings, "reasonable time" is a function of those deadlines; a withdrawal motion filed on the eve of a hearing without the client having a meaningful opportunity to obtain new counsel is generally not consistent with the rule.
The lawyer must surrender to the client all papers and property to which the client is entitled. This is the "client file" obligation. The scope of the client file is broad in most jurisdictions and includes all materials provided by the client to the lawyer, all materials the lawyer prepared for the client's purposes, and all materials received from third parties in the course of the representation. Where a lawyer has a duty to produce the client file, the entire file generally must be produced; selective production may itself be both a 1.16(d) violation and grounds for malpractice exposure.
Advance payments of fees or expenses that have not been earned or incurred must be refunded. The substantive question of what has been "earned" is governed by the engagement agreement and applicable fee-shifting authority; in bankruptcy matters, Section 329(b) provides an independent federal mechanism for evaluating reasonableness of fees paid.
The "entire file" standard. Where the rule requires production of the client file, the entire file is generally required. Partial production of selected portions, with retention of materials the lawyer prefers not to produce, has been treated by reviewing authority as a violation of the rule independent of any underlying defect in the representation itself.
The last sentence of subdivision (d) preserves any right the lawyer has under other law to retain papers - typically an attorney's lien for unpaid fees. The scope of any such lien is governed by state law and varies materially by jurisdiction. Most jurisdictions either (a) do not permit retention of materials whose retention would prejudice the client's substantive position in pending proceedings, or (b) permit retention only as to materials prepared at the lawyer's expense and not yet paid for, while requiring production of materials provided by the client or essential to ongoing matters.
The client emails the lawyer instructing the lawyer to cease work. Rule 1.16(a)(3) makes withdrawal mandatory. The lawyer files a withdrawal motion under the local rule (Rule 9010 framework), provides notice to the client and all parties entitled to notice, and on entry of an order granting withdrawal complies with Rule 1.16(d) - including surrender of the client file and refund of any unearned advance fees.
The client has fallen significantly behind on fee obligations. The lawyer provides reasonable warning that withdrawal will be sought unless the obligation is addressed. If the obligation is not addressed, the lawyer may move to withdraw under 1.16(b)(5). The motion must satisfy the local-rule timing and notice requirements; tribunal permission under 1.16(c) is required before the representation is procedurally terminated.
Rule 1.16(d) is the most-litigated subdivision of the rule because it sets a continuing duty that runs from termination forward. The duty does not extinguish at the moment of termination; it continues until the client has received reasonable notice, has had time to obtain successor counsel, has received the file, and has received any refund due. A representation can be procedurally terminated by court order while the 1.16(d) duties remain unperformed; the procedural endpoint does not discharge the substantive duties.
This page provides general information about Rules of Professional Conduct 1.16 (Kansas) and 4-1.16 (Missouri). It does not constitute legal advice. Specific questions about withdrawal, termination, or file production should be evaluated by qualified counsel.