Archive for May, 2014

23
May
14

Exteme Noisy Withdrawal

Some things can't be done quietly.

Some things can’t be done quietly.

In an ethics and evidence CLE speech I gave this week, I discussed the concept of “noisy withdrawal.”  Under Georgia Rule of Professional Responsibility (and the same Rule of most Model Rules states), Rule 1.2 (d) forbids an attorney from assisting in the fraudulent or criminal activities of a client.

Comment 10 to Georgia Rule 1.2 further provides that an attorney may not continue assisting a client in conduct that was originally thought proper is later discovered to be criminal or fraudulent.

The lawyer must, therefore, withdraw from the representation of the client in the matter …. In some cases, withdrawal alone might be insufficient.  It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like.

Rule 1.2(d), comment 10.  This concept is called “noisy withdrawal.”  In discussing this subject at the CLE, we discussed Rule 1.6 and the limited right to reveal client confidences to defend against charges of wrongdoing.

Today, I read an article about “noisy withdrawal” that provides a rather extreme example.  Akin Gump recently withdrew after it had obtained a $25 million verdict because evidence relied upon by the fact finder turned out to be fabricated.  Following the verdict, the defendant filed a motion for sanctions contending that the plaintiff “manufactured and falsified evidence used in this litigation, testified falsely, and committed a fraud upon this Court.”  [Akin Gump’s description in its motion to withdrawal.]  Akin Gump essentially admitted that the motion was well founded.

This is one of the more extreme and better examples of this concept in action.  Akin Gump’s attorneys faced an ethical delima, but they appear to have acted consistently with Rule 1.2, comment 10.

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