My client died, and the widow won't cooperate in substituting a personal representative as plaintiff so I can move the case forward. May I withdraw under Rule 1.16?

Plain-English summary

The inquiring attorney had filed a lawsuit on behalf of a client who has since died. The attorney attempted to substitute the decedent's personal representative or surviving spouse as the plaintiff in place of the decedent, but the widow was unwilling to cooperate. The attorney sought the Panel's guidance on withdrawing from the matter.

The Panel set out Rule 1.16(b) ("Declining or Terminating Representation"), which permits withdrawal where it can be accomplished without material adverse effect on the client's interests, or for enumerated reasons including, in Rule 1.16(b)(5), that the representation has been rendered unreasonably difficult by the client. The Panel noted it had previously addressed withdrawal where an attorney's efforts to communicate with clients elicited no response, citing General Information Opinion #6 (issued June 30, 1993).

Applying the rule, the Panel opined that the widow's behavior is prohibiting the inquiring attorney from rendering effective representation, and therefore withdrawal is permitted under Rule 1.16(b)(5).

Currency note

This opinion was issued in 1994 (Opinion 94-73, issued November 15, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.16 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.16. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can I withdraw when a deceased client's family won't cooperate to keep the case moving?

A: The Panel concluded yes on these facts. The widow's lack of cooperation made effective representation unreasonably difficult, permitting withdrawal under Rule 1.16(b)(5).

Q: Which withdrawal ground applied?

A: Rule 1.16(b)(5), which permits withdrawal when the representation has been rendered unreasonably difficult by the client.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.16 (declining or terminating representation), the analog of Model Rule 1.16. Rule 1.16(b) sets out permissive withdrawal grounds, and Rule 1.16(c) requires continued representation if a tribunal so orders. The Panel applied the "unreasonably difficult" ground to the widow's refusal to cooperate in substituting a proper plaintiff.

Citations and references

Rules of Professional Conduct:

• MR 1.16 / RI RPC 1.16(b) (declining or terminating representation; permissive withdrawal when representation is rendered unreasonably difficult)

Other opinions cited:

• RI EAP General Information Opinion #6 (issued June 30, 1993): withdrawal where the client does not respond to the lawyer's communications

See also

• RI EAP Opinion 94-66: a successor home buyer is not the lawyer's client under Rule 1.9
• RI EAP Opinion 94-45: adverse concurrent clients, attorney must withdraw from Client B

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2094-73.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
OPINION #94-73 REQUEST #544
Issued November 15, 1994

The inquiring attorney filed a lawsuit on behalf of a now deceased client. The inquiring attorney has attempted to substitute the decedent's personal representative or surviving spouse as the plaintiff in place of the decedent but the widow is unwilling to cooperate with the inquiring attorney. The attorney seeks the Panel's guidance in withdrawing from this matter.

Rule 1.16(b) entitled "Declining or Terminating Representation" states the following:

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

(1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(2) the client has used the lawyer's services to perpetrate a crime or fraud;

(3) the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;

(4) 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;

(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(6) other good cause for withdrawal exists.

(c) 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 that has not been earned.

The Panel has previously addressed the subject of withdrawal when the inquiring attorney's efforts to communicate with clients elicited no response. See, General Information Opinion #6, Issued June 30, 1993.

Rule 1.16(b) allows an attorney to withdraw from representing a client if it can be accomplished without adversely affecting the client's interests. According to the facts provided, the widow's behavior is prohibiting the inquiring attorney from rendering effective representation and therefore withdrawal is permitted under Rule 1.16(b)(5).