Professor Ellen Murphy (JD ’02) quoted in ABA Journal regarding professional responsibility

Photo of Wake Forest Law Assistant Dean of Instructional Technologies and Design Ellen Murphy (JD '02) outside the Worrell Professional Center

Assistant Dean of Instructional Technologies and Design Ellen Murphy (JD '02)

Professor Ellen Murphy (JD ’02) is quoted in the following story, “Lawyers should tread carefully before quitting a troublesome client,” published in the American Bar Association Journal on April 1, 2017.

Professor Murphy, who is the law school’s first assistant dean for instructional design and director of the Master in Studies in Law (MSL) degree and certificate program, has been teaching Professional Responsibility for Wake Forest Law since 2011. Registration is currently open for her online summer course.

An excerpt follows:

Ellen Murphy, who teaches professional responsibility at Wake Forest University School of Law, says judges should be able to read between the lines when lawyers seek permission to withdraw and recognize that there could be rule compliance issues, such as conflict of interest or repugnant action by the client. However, “I can imagine facts when a judge would want, and reasonably need, more information,” Murphy says.

A judge could ask the lawyer whether the motion is brought in good faith and without a dilatory purpose. The opinion explains that a “judge should not require the disclosure of confidential client information without considering whether such information is necessary to reach a sound decision on the motion.”

If the judge needs more information to rule on the motion to withdraw, the attorney should try to persuade the court to rule on the motion without the attorney revealing confidential client information. If that does not work, the attorney should “submit only such information as is reasonably necessary to satisfy the needs of the court and preferably by whatever restricted means of submission, such as in camera review under seal or such other procedures designated to minimize disclosure, as the court determines is appropriate.”

“When some additional information is necessary, the judge should require only that which is necessary to resolve the issue and should usually receive the information under seal and in camera,” Swisher says. In certain situations, including conflicts about strategy, a jurist other than the trial judge should hear the sensitive information and make the ruling, so that the trial judge is not exposed to the information, he adds.

This process might require extra time and expense for lawyers who already might not have been paid by clients. “Our profession increasingly wrestles with the tension between law as a profession vs. law as a business and the cost, broadly defined, of increased regulation,” Murphy says. “In solely business terms, the added resources, and therefore cost, to the lawyer in having to show cause why withdrawal should be permitted is especially high because the lawyer already has suffered the cost of nonpayment. Essentially, the lawyer has a receivable at this point. And having to show cause further decreases the value of this receivable.”

COOPERATION IS KEY

Lawyers are in a different position than many other people in business. They often have to keep working even though they know they are not getting paid. “Business people value certainty,” Murphy says. “If a buyer repudiates a contract, the seller can cancel without judicial approval. A lawyer cannot do so, necessarily, when a client repudiates a contract by failing to pay. This reality existed before this opinion; the opinion does not change things. But it is notable that the structure of the process found in this opinion increases uncertainty for the lawyer and therefore the costs of doing business. A lawyer can’t be a professional unless she can get paid.”

The opinion emphasizes that the process of filing for and considering a motion to withdraw requires cooperation between lawyers and judges. “Cooperation is essential,” Murphy says. “Without it, lawyers are at risk.”

This article originally appeared in the April 2017 issue of the ABA Journal with this headline: “Leave to Withdraw: Lawyers should tread carefully before quitting a troublesome client to comply with ethics rules.”