(Based on The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2019-198.)

An attorney is ethically prohibited from proceeding with a legal action in certain limited circumstances. (Rules of Prof. Conduct, Rule 1.16(a).) Under the State Bar Act, an attorney has a duty to “counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just.” (Bus. & Prof. Code § 6068(c).) Furthermore, an attorney is prohibited from bringing or continuing an action “without probable cause and for the purpose of harassing or maliciously injuring any person.” (Rules of Prof. Conduct, Rule 3.1(a)(1).)

Legal Standard

Withdrawal from a legal action is mandatory if

1. the lawyer knows or reasonably should know that the action is being taken without probable cause and for the purpose of harassing or maliciously injuring any person;
2. the lawyer knows or reasonably should know that continued employment will result in a violation of the Rules of Professional Conduct or the State Bar Act;
3. the lawyer’s mental or physical state renders it unreasonably difficult to effectively carry out the representation; or
4. the lawyer is discharged by the client.

(Rules of Prof. Conduct, Rule 1.16(a).)

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 or fraudulent;
4. the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;
5. the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless 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;
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.

(Rules of Prof. Conduct, Rule 1.16(b).)

Settling a Meritless Case

To avoid liability for malicious prosecution, an attorney who concludes that a case is “totally and completely without merit” must either cause the dismissal of the case or withdraw. (Zamos v. Stroud (2004) 32 Cal.4th 958, 970.) However, the attorney may only be liable if the claims are such that “any reasonable attorney would agree are totally and completely without merit.” (Id. at 971.) Under such circumstances, the attorney must either cause the dismissal of the lawsuit or withdraw. (Id. at 969-70.) While the court does not address the issue of whether dismissal of a meritless case can be achieved through settlement, the factors articulated by the Zamos court may also apply to any dismissal, whether achieved as part of a settlement or filed independent of settlement. (Id. at 969-70.)

Although an attorney may seek to settle a meritless case, his ability to advocate for settlement may be significantly limited by his duty of truthfulness. (Bus. and Prof. Code, § 6106.) “No distinction can… be drawn among concealment, half-truth, and false statement of fact.” (In the Matter of Loftus (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 80, 86.)

An attorney may not make affirmative material misstatements of fact concerning the merits of the claim, by, for example, falsely stating that certain evidence will support liability or damages recoverable against the defendant, when the attorney now knows that in fact it will not do so. (Kotlar v. Hartford Fire Ins. Co. (2000) 83 Cal.App.4th 1116, 1123; Bus. and Prof. Code, § 6068(d).) “[A] lawyer communicating on behalf of a client with a nonclient may not knowingly make a false statement of material fact to the nonclient, and may be liable to a nonclient for fraudulent statements made during business negotiations.” (Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, 291.)

An attorney may not present a claim in litigation “that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.” (Rules of Prof. Conduct, Rule 3.1(a)(2).) Attorneys may only bring complaints and maintain arguments that “are supported by law or facts.” (Canatella v. Stovitz (N.D. Cal. 2005) 365 F.Supp.2d 1064, 1077; In re Estate of Randall (1924) 194 Cal. 725, 728-29.)

Ethical Duties to Client

A lawyer violates his or her ethical mandate by abandoning a client. (Pineda v. State Bar, 49 Cal.3d 753, 758-759.) Even where grounds for mandatory withdrawal exist, an attorney may not withdraw from representation until the lawyer “has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client.” (Rules of Prof. Conduct, Rule 1.16(d); In re Hickey (1990) 50 Cal.3d 571 [788 P.2d 684]; Kirsch v. Duryea (1978) 21 Cal.3d 303, 311 [146 Cal.Rptr. 218].)

In a matter pending before a tribunal, even where mandatory grounds for withdrawal exist, the duty to take reasonable steps to protect against reasonably foreseeable prejudice lasts until the attorney is either formally substituted out of the case or has been relieved as counsel by order of the Court. (In the Matter of Riley (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 91, 115.)

“[B]y advising a client to dismiss a meritless case, the attorney will serve the client’s best interest in that the client will avoid the cost of fruitless litigation, and the client’s exposure to liability for malicious prosecution will be limited.” (Zamos v. Stroud (2004) 32 Cal.4th 958, 969-70.)

Nonconsensual Withdrawal

“An attorney should not seek nonconsensual withdrawal immediately upon determination that the case lacks merit, but should delay to give his client an opportunity to obtain other counsel or to file a consensual withdrawal.” (Kirsch v. Duryea (1978) 21 Cal.3d 303, 311.) This is because when an attorney non-consensually withdraws, there is “an obvious inference” that the withdrawal “is not for the client’s purpose but for the attorney’s purpose, usually a lack of confidence in the merits of the case.” (Id.)