RI-51

June 4, 1990

SYLLABUS

When a client notifies a lawyer of the lawyer's discharge from a matter, the lawyer is required to promptly pursue appropriate motions for withdrawal. Until the tribunal acts to relieve the lawyer, the lawyer should continue to perform as legal representative for the client.

If a lawyer believes a client is unable to make decisions concerning the representation or is incompetent, the lawyer should seek independent corroborating reports from professionals or seek the appointment of a guardian or conservator.

If a lawyer believes, but does not know, that a client's discharge of the lawyer is frivolous or tactical, the lawyer may not reveal that information to the tribunal considering the motion for withdrawal unless the client consents or unless ordered by the tribunal.

References: MRPC 1.2(a), (c), (d), 1.6(c), 1.14, 1.16, 3.1, 3.2, 3.3, 3.7, 4.1; RI-13, RI-20; CI-635, CI-1055, CI-1188; People v. Ginther, 390 Mich 436 (1973); People v. Jones, 168 Mich App 191 (1988); People v. Wandero, 57 Mich App 244 (1974); Wilson v. Mintzes, 761 F2d 275 (CA6 1985).

TEXT

A lawyer is appointed by a circuit court to represent an indigent criminal defendant. During the course of the representation, various motions have been filed and are pending before the court. The client becomes dissatisfied with the lawyer and notifies the court orally and in writing that the lawyer is discharged. The lawyer believes the client may be incompetent, and that the request for new counsel is either frivolous or with intent to delay a scheduled trial. The court does not rule on the lawyer's discharge. The lawyer asks:

1. Is the lawyer discharged by virtue of the defendant's action and notification to the court?
2. Is the lawyer required to continue to serve and appear on pending motions until the court rules on the discharge?
3. Is the lawyer obligated to bring a motion for discharge based on the client's wishes?
4. Does the lawyer have any other duties in the matter?

MRPC 1.2(a) states the general proposition that "a lawyer may, where permissible, exercise professional judgment to waive or fail to assert a right or position of the client." However, the lawyer's discretion in this regard may not contravene the client's right to choice of counsel. MRPC 1.16(a) states:

"(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

". . .

"(3) the lawyer is discharged."

It is well established that under the Sixth Amendment a criminal defendant must be afforded a reasonable opportunity to secure counsel of the client's own choosing, Urquhart v. Lockhart, 726 F2d 1316 (CA8 1984); US v. Burton, 584 F2d 485 (DC Cir 1978), cert den 439 US 1069 (1979).

In Wilson v. Mintzes, 761 F2d 275 (CA6 1985), the Court was asked to review the denial of petitioner's mid-trial request for a continuance to obtain substitute counsel. The court stated that in order to obtain substitution of counsel in mid-trial petitioner must show good cause and a justifiable dissatisfaction with counsel. Distinguishing the constitutional protection of a defendant's free choice of counsel from the right to adequate counsel, the court held that the proper test is to balance the defendant's right to counsel of choice with the public interest in the administration of justice.

Michigan courts have similarly applied such a balancing test, People v. Jones, 168 Mich App 191 (1988) (substitution of counsel may be granted upon a showing of good cause and where the substitution does not unreasonably disrupt the administration of justice). See also, People v. Ginther, 390 Mich 436 (1973).

Although none of these cases directly addresses a lawyer's ethical obligations in seeking substitution of counsel at a client's request, the balancing test has been applied in determining a lawyer's MRPC 1.16 duties. In RI-20, the Committee noted that a stipulation for withdrawal is not absolute, but is subject to a court's order to continue in the matter. MRPC 1.16(c) states:

"When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation."

See also, Hazard and Hodes, The Law of Lawyering, Prentice-Hall, p. 297 (1988 Supplement), "[T]he theory of MRPC 1.16(c) is that even if a withdrawal is otherwise appropriate -- perhaps urgent -- precedence must sometimes be accorded to preserving the tribunal's resources and efficiency, as well as to maintaining fairness to opposing litigants. The balance should be struck by the judge or judicial officer, and the lawyer should abide by the decision . . . ."

The opportunity for applying the balancing test is ensured by MCR 2.117(C)(2): "An attorney who has entered an appearance may withdraw from the action or be substituted for only on order of the court."

The lawyer may not waive or fail to assert the client's discharge of the attorney's services. Because of the wording of the rules, i.e., a lawyer shall withdraw when discharged, a lawyer has an obligation, when notified by the client of discharge, to effectuate the withdrawal by filing the motion, sending notices, or taking other appropriate steps. Once a case has been filed in court, the proper motions must be made to remove the lawyer's responsibility for the matter. Therefore it is the lawyer's duty to put the matter to the tribunal. The lawyer should continue to perform as the client's legal representative until the court acts on the motion.

The more troublesome aspect is the grounds to be stated in the motion and the lawyer's permitted response to questions from the presiding adjudicator concerning the discharge.

If the client is "incompetent," MRPC 1.14 provides:

"(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority or mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

"(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest."

Prior to the adoption of MRPC 1.14 the Committee discussed the issue of the disabled client. In CI-1055 the Committee held that if a lawyer had "good reason" to believe a client was incompetent, the lawyer could exercise professional judgment and continue legal representation to safeguard the client's best interests, even when the client requested the lawyer to withdraw, but the lawyer was cautioned that to bypass the client's request for withdrawal the lawyer needed to have the client's condition corroborated by professional consultations and reports. See also, People v. Wandero, 57 Mich App 244 (1974). In CI-1188 the Committee stated that a lawyer should dismiss an appeal on the request of a client, even if the lawyer believed the client was "incompetent," as long as the lawyer believed the dismissal of the appeal was in the best interest of the client.

Hazard and Hodes discuss the two options provided in MRPC 1.14 as follows:

"Two analytical tools borrowed from other areas of the law of lawyering may help lawyers come to grips with the problem of a client under a disability, especially a severe disability. First, where a disabled person cannot realistically communicate with 'his' lawyer it may be accurate to say that the lawyer does not really 'represent' that person as a 'client,' but instead represents an abstraction: 'The best interests of the person.' The problem then becomes one of ascertaining what those best interests are, which is similar to the problem that entity lawyers face under Rule 1.13. Since entities cannot literally communicate their desires to a lawyer, entity lawyers constantly act on the basis of what they think the entity would want if it could communicate. In practice, lawyers most often assume that the entity wants what its highly placed agents say it wants, but that does not negate the fact that it is the lawyer who ultimately accepts the communication as coming from the client. Similarly, lawyers for a disabled client may use various devices to try to determine what their client 'really' wants, including of course, communicating as best they can with the client himself. But in the end, all clues will be processed by the lawyer, and the lawyer will act as best he can 'in the best interests of the client.'

"A second analytical aid is the concept of primary and derivative clients . . . . For example, if a client is under such a disability that a guardian must be appointed, it may be appropriate to think of the guardian as the primary client and the disabled person as the derivative client -- not the other way around. In the guardian, the lawyer finds a client with whom he can communicate fully. More importantly, the position of the guardian is such that what he wants from the lawyer is normally deemed to be what the disabled person wants. The lawyer therefore can follow the guardian's instructions, secure in the knowledge that he is also being of service to the disabled person. This way, the burden of determining what is in the best interests of the disabled person is lifted from the lawyer's shoulders, freeing him to perform more traditional lawyer tasks." Hazard and Hodes, pp. 270-271. Emphasis placed by authors.

It is clear, therefore, that there need not be an adjudication that a client is incompetent to stand trial in order for the client to be unable to make decisions about the representation, and that a lawyer should have independent corroboration of the client's condition before contravening a client's request regarding the representation.

It could be argued that a client who deliberately seeks substitute counsel as a tactic for delay has thereby shown a level of awareness and willfulness that may disprove the client's "incompetence." If so, the lawyer's duty, as discussed previously, is to comply with the client's request for substitution. If the client's discharge is frivolous or with intent to delay the proceedings, the lawyer will have to carefully evaluate how to present the issue to the tribunal consistently with the lawyer's duty to serve the best interest of the client and the administration of justice. MRPC 1.2(c) and (d) requires a lawyer to counsel a client not to engage in conduct that is illegal or fraudulent, and not to assist a client in such conduct. When the client expects such assistance contrary to the ethics rules, MRPC 1.2(c) and (d) require a lawyer to counsel the client as to the limitations on the lawyer's conduct.

In preparing to withdraw, a lawyer must comply with MRPC 3.1 ["A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so which is not frivolous."], MRPC 3.2 ["A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client."], MRPC 3.7 [A lawyer may not be a witness in a proceeding in which the lawyer is a necessary witness to a contested fact.], and MRPC 4.1 [A lawyer shall not knowingly make a false statement of material fact or law.]

MRPC 1.6(c) would allow the lawyer to reveal confidences and secrets of the client only with consent of the client, or when required by law, or to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services were used, or to prevent a crime. Pursuant to MRPC 3.3, a lawyer shall not knowingly make a false statement of material fact or law, fail to disclose a material fact, or fail to disclose controlling legal authority adverse to the client.In CI-635 the Committee stated a lawyer could not reveal confidences and secrets to secure withdrawal from a case. In this inquiry, the lawyer believes, but apparently does not have knowledge, that the discharge is frivolous or tactical. A lawyer may not reveal client confidence or secrets based on a mere suspicion, rather than knowledge, of a client's false testimony, RI-13. It is the responsibility of the tribunal to determine the merits of the client's request for substitution of counsel.

Therefore, when a client notifies a lawyer of the lawyer's discharge from a matter, the lawyer is required to promptly pursue appropriate motions for withdrawal. The lawyer should make the motion by stating that the client has requested that a motion for withdrawal be made. Until the tribunal acts, the lawyer should continue to perform as legal representative for the client.

If a lawyer believes a client is unable to make decisions concerning the representation or is incompetent, the lawyer should seek corroborating reports from professionals or seek the appointment of a guardian or conservator.

If a lawyer believes, but does not know, a client's discharge of the lawyer is frivolous or tactical, the lawyer cannot reveal that information to the tribunal considering the motion for withdrawal unless the client consents or unless ordered by the tribunal.