In mid-January, Mark Lemley, a professor at Stanford Law School and an influential intellectual property and technology lawyer in Silicon Valley, posted on LinkedIn that he had decided to end his relationship with his client Meta—Facebook’s parent company.

“I have fired Meta as a client,” Lemley wrote. He had been representing the social media giant in an AI copyright suit, and said that while he hopes the company wins the case, “I cannot in good conscience serve as their lawyer any longer.” Lemley, who serves as the William H. Neukom professor of law at Stanford Law and director of its Program in Law, Science and Technology, said he made his decision in response to CEO Mark Zuckerberg and Facebook’s “descent into toxic masculinity and Neo-Nazi madness.”

The move immediately raised legal ethics questions. The Recorder, the San Francisco legal publication that first reported the story, quoted Georgetown Law School’s ethics counsel, who noted that an attorney can exit a client representation via a mandatory withdrawal (for example, when a client fires a lawyer) or a permissive withdrawal, which can encompass a wide variety of issues. This can include, “finding the client repugnant,” the lawyer told The Recorder.

First, Do No Harm

The lawyer added that a withdrawal is not ethically inappropriate so long as “it doesn’t perpetrate a harm upon the client,” the publication reported. This aligns with Rule 1.16 of the American Bar Association’s Model Rules of Professional Conduct, which covers how lawyers may decline or terminate representation. (As always, check your local bar rules for any variations.) Rule 1.16 holds that “a lawyer may withdraw from representation in some circumstances…if it can be accomplished without material adverse effect on the client's interests.”

Under the rule, optional (or permissive) withdrawal from a client relationship can be justified when a client:

• Engages in activity the lawyer reasonably believes is criminal or fraudulent. “A lawyer is not required to be associated with such conduct even if the lawyer does not further it,” the rule states.
• Persists in actions that the lawyer “considers repugnant or with which the lawyer has a fundamental disagreement.” (This would likely cover Lemley’s situation.)
• Does not live up to the terms of an agreement relating to the representation, “such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation.”

Rule 1.16 also requires a mandatory withdrawal if “the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law.”

And, of course, a lawyer must withdraw if the client discharges them. The rule makes clear that a client may fire a lawyer at any time, “with or without cause, subject to liability for payment for the lawyer's services.” If a lawyer anticipates future disputes because of a withdrawal, the rule advises preparing “a written statement reciting the circumstances.”

Firms Should Tread Carefully

Naturally, most firms will not be making the kind of public statement about a withdrawal that Lemley did—and that’s probably advisable. As the Georgetown ethics lawyer quoted by The Recorder noted, making negative public statements about a client may “raise potential ethics concerns.”

Also, terminating a client can be more complicated if it occurs during litigation. A judge may be skeptical about a decision to terminate a client relationship, and opposing counsel have, on occasion, attempted to use such situations for a tactical advantage.

As the Model Rule notes, “difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.”

In addition, lawyers have a duty under the rule to take “all reasonable steps to mitigate the consequences to the client” even if they feel the client has discharged them unfairly. This includes retaining papers “as security for a fee only to the extent permitted by law,” the rule states. Keep in mind other obligations as well, such as communications. Under Model Rule 1.4, an attorney must keep the client “reasonably informed about” the status of their matters. This applies to information gained even after a withdrawal.

In the end, firing a client is no fun—but it’s a task firms should not avoid. A broken relationship can waste significant time and resources and ultimately does the client no favors. As long as the firm and its lawyers are aware of their ethical obligations, they should consider moving on as quickly and professionally as possible.

Do you have questions, feedback, or topics you would like The Edge to cover? Send a note to david@good2bsocial.com.