By Maryam Hatcher, Esq.
Dear Ethical Esquire: I’m in a bit of a prickly situation. I have a client, who is facing eviction, with an upcoming trial next week. The problem is, he is being extremely uncooperative. I really want to help him, and I think that I can secure a victory for him that would allow him to stay in his home (I’m not sure if another attorney could quickly get up to speed before next week’s trial). However, he does not respond to my calls or emails and he has missed important meetings, which makes it nearly impossible for me to effectively represent him. I’m thinking about just throwing in the towel and withdrawing my representation. Would I be wrong?
– Annoyed Advocate*
Dearest Advocate: I understand your frustration. You want to advocate for your client, but he is not making it easy for you. But you know what they say…no one ever said lawyerin’ was easy.
The good news is that the ABA Model Rules of Professional Conduct do provide helpful guidance about whether a lawyer can or cannot withdraw from representation. Specifically, Rule 1.16(b)(6) states that “a lawyer may withdraw from representing a client if … [the representation] has been rendered unreasonably difficult by the client.” This provision seems to apply to your case in that your client’s lack of cooperation is proving to be a stumbling block for you.
However, Rule 1.16(b)(1) expressly states that a lawyer is only permitted to withdraw if such withdrawal would not lead to material adverse effects on the interests of the client. In your case, you mentioned that given the looming trial date, you are not sure whether another attorney could step into your shoes and be prepared to represent your client by the current trial date. This may not be an insurmountable hurdle if the court and parties are amenable to rescheduling trial to allow the new attorney enough time to prepare, but it is certainly a significant factor that you would have to consider. After all, if your client’s new counsel cannot adequately prepare for trial then that would certainly have a “material adverse effect” on your client’s interests.
In addition, the Rules require the withdrawing attorney to “take steps to the extent reasonably practicable to protect a client’s interests,” including giving sufficient notice to your client and allowing time for your client to hire a new attorney. Again, unless the imminent court date can be rescheduled, you likely do not have enough time to give your client reasonable notice if you are seeking to withdraw before trial. Not to mention, your local jurisdiction’s rules may have different or additional requirements, including the requirement to seek leave from the court before withdrawing representation.
Lastly, keep in mind that whether or not you withdraw, you must avoid saying anything about your representation to the court, opposing counsel, or any third party that could disadvantage your client. For example, if you move the court to reschedule the trial so that your client may find new counsel, you are not at liberty to badmouth your client to help sway the court (e.g., “my client won’t cooperate; “my client won’t let me help him”; etc.). You must take all steps to avoid casting your client in bad light, keeping in mind any ethical or legal obligations you have to remain candid with the court.
Now – go forth and be ethical!
*Disclaimer: “Annoyed Advocate” is a fictional advice seeker. This blog is satirical in nature and, though it aims to provide helpful guidance regarding professional responsibility dilemmas, it is not intended to offer legal advice.
In our next post, Ethical Esquire will offer tips on managing client’s money. An important issue indeed!