RI-84

May 3, 1991

SYLLABUS

A lawyer whose client files a grievance against the lawyer need not resign from the client's matter if a disinterested lawyer would reasonably conclude that the lawyer's representation of the client would not be adversely affected by the pending grievance.

References: MRPC 1.6, 1.7(b), 1.16(c); RI-37; MCR 2.117(C)(2), 8.122, 9.113(C).

TEXT

A lawyer has received a Request for Investigation from the Attorney Grievance Commission regarding a matter in which the lawyer is still representing the client/complainant. The lawyer asks whether he/she is required to withdraw from the client's case and what other obligations the lawyer has regarding the matter.

A lawyer may reveal confidences and secrets of a client to defend the lawyer against an accusation of wrongful conduct, but only to the extent reasonably necessary to do so, MRPC 1.6(c)(5). Further, under MCR 9.113(C) a person who files a request for investigation waives any lawyer-client privilege relating to the request for the purposes of the Attorney Grievance Commission investigation. The lawyer has 21 days to respond to the Request for Investigation.

If the client seeks to discharge the lawyer, the lawyer should take steps to implement the client's wishes, MRPC 1.16(a)(3). If the client does not seek a substitution of counsel, whether the lawyer is required to withdraw or may withdraw depends upon whether "the representation will result in violation of the Rules of Professional Conduct or other law," MRPC 1.16(a)(1), or whether "other good cause for withdrawal exists," MRPC 1.16(b)(6), or whether the withdrawal can be accomplished without material adverse effect on the interests of the client, MRPC 1.16(b).

MRPC 1.7(b) prohibits a lawyer from continuing representation when a disinterested lawyer could not reasonably conclude that the representation of the client would not be adversely affected by the lawyer's own interests. In RI-25, the Ethics Committee determined that a client's malpractice claim against a lawyer prevented the lawyer's firm from continuing to represent the client even on unrelated matters. In RI-37, the Committee determined that a lawyer could not represent a client in a matter which could result in liability of the lawyer's current partner for actions taken by a former associate of the partner at a prior law firm.

Whether the client's grievance "adversely affects" the lawyer's ability to represent the client in the main matter and whether "other good cause" exists depend upon the nature of the grievance and the nature and stage of the main matter.

Clients sometimes file grievances through a lack of understanding about what is happening in their case. A client may not understand that the lawyer is not responsible for delays in bringing a case to trial when the delay results from a crowded court docket. The client may misunderstand the role of the lawyer vis a vis the judge, the mediator, or opposing counsel, or fail to appreciate the complexity and judgment involved in marshalling and verifying evidence and interviewing witnesses. If the nature of the grievance reflects a fundamental misunderstanding of the process, the lawyer should not respond in anger with a request to withdraw without analyzing whether an impermissible conflict exists.

If the grievance involves the propriety of the lawyer's fee, it may be advantageous to both the lawyer and the client for the lawyer to continue the client's representation until case proceeds are paid, and resolve the fee dispute separately. In such a case a disinterested lawyer may reasonably determine that the representation would not be adversely affected, and seek the client's consent to the continued representation, MRPC 1.7(b)(2).

The status and stage of the underlying matter at the time the client files a grievance may also be significant. If the client's case is in litigation, the lawyer cannot withdraw without the permission of the presiding adjudicator, MRPC 1.16(c); MCR 2.117(C)(2). Whether the judge will grant a motion to withdraw will depend upon the facts of the individual situation. For example, if the trial has been held but judgment has not yet been entered, the judge might rule withdrawal inappropriate when weighed against the delay and expenditure of court resources necessary to bring a new lawyer into the case. If the complaint concerns the lawyer's fee, the judge may consider it expeditious to render judgment on the matter and allow the lawyer and client to dispute the fee separately, MCR 8.122. See People v. Jones, 168 Mich App 191 (1988); People v. Ginther, 390 Mich 436 (1973); Wilson v. Mintzes, 761 F2d 275 (CA6 1985). For withdrawal of appointed counsel see ethics opinion RI-51; for disabled clients see MRPC 1.14 and opinions RI-51, RI-76, CI-1055; for frivolous or tactical discharge of counsel, see opinions RI-51, CI-635.

Until the lawyer is discharged or withdraws, the lawyer must continue to handle the client's matter to the best of the lawyer's ability. The lawyer may continue to communicate with the client about the subject matter of the representation, but a lawyer's attempt to negotiate the grievance with the client while the lawyer is acting as the client's counsel in any matter would be prohibited under MRPC 1.7(b), and may constitute separate grounds for discipline.