UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER鈥橲 CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 94-35
Client was injured in an automobile accident and has retained Attorney to pursue a claim for personal injuries against the driver, but Client has consistently disregarded Attorney's advice. Attorney has learned from a physician (a neurologist who treated Client) that Client was diagnosed with several psychoses (conditions which may have been triggered by the automobile accident) and that Client has been prescribed anti- depressant medication.
Attorney's most recent telephone conversation with Client revealed that Client could not understand instructions, nor focus attention on a single subject for more than a few seconds, nor collect his thoughts into a organized logical pattern. However, Client has not been adjudicated mentally incompetent.
Despite written requests, Client has not responded to Attorney for several weeks and Client's parent advised Attorney that Client's whereabouts are unknown. Attorney has learned that Client may have been arrested in another state on a criminal assault charge.
Attorney wishes to withdraw from representation of Client. However, Attorney is concerned that even if Client received actual notice of withdrawal, Client would not be capable of understanding the notice or information such as the means by which to retrieve the file or the warning as to the date on which the applicable statute of limitations would expire. Further, Attorney is concerned that even if representation is continued, Client will be incapable of assisting with the case or rendering a prudent decision as to any of settlement.
Questions:
1. Is Attorney required or permitted to withdraw from representation of Client?
2. If Attorney is not permitted to withdraw from representation of Client, what measures should Attorney employ to ensure that Client will assist Attorney in progressing with Client's claim and will make a prudent decision as to the final disposition of the matter?
3. If Attorney is permitted or required to withdraw from representation of Client, what measures should Attorney employ to properly notify Client of Attorney's withdrawal and to ensure that Client understands the consequences of Attorney's withdrawal?
Summary:
Attorney 1) is not required to withdraw from the representation, 2) may be permitted to withdraw from the representation, and 3) should seek the appointment of a guardian for Client.
Opinion:
None of the facts presented depicts a situation requiring Attorney to withdraw from representation. Rule 1.16(b)(4) would normally permit Attorney to withdraw from representation; however, in this instance there are compelling reasons to believe that Client's interests would be adversely effected if Attorney were permitted to withdraw. Rule 1.14(b) requires Attorney to seek the appointment of a guardian due to his stated belief that Client is unable to act in Client's own best interest.
Mandatory withdrawal due to Client's conduct is required only when the representation will violate the Rules of Professional Conduct or other law. Rule 1.16(a)(1). The comments to Rule 1.16 state that such withdrawal is to take place "... if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law." The rule does not require withdrawal where the client has apparently committed a crime not involving the attorney (see below).
Optional withdrawal is allowed under certain circumstances, such as where "... the client persists in a course of action that the lawyer reasonably believes is criminal ..." or where "... the client refuses to abide ... by an agreement relating to the representation ...." Comments to Rule 1.16. Such withdrawal is limited, however, by the restriction contained in Rule 1.16(b): "... if [permissive] withdrawal can be accomplished without material adverse impact on the interests of the client." Under normal circumstances, Attorney might be permitted to withdraw due to Client's failure to follow Attorney's instructions.
(Attorney has issued written warning that he would withdraw if Client did not contact him and follow his instructions.) Rule 1.16(b)(4)&(6). In this case, given Client's mental condition, such withdrawal would result in material adverse impact upon Client's interests. Rule 1.16(b). (Even if Attorney were to withdraw despite such adverse impact, he still has an obligation to mitigate the consequences to Client. Rule 1.16(d).) Attorney should seek appointment of a guardian for Client. When, as in this case, Attorney reasonably believes that Client cannot adequately act in Client's best interest, he may seek the appointment of a guardian or take other protective action. Rule 1.14(b). Attorney, however, must also be concerned that the disclosure of Client's condition may adversely impact Client's interests, such as leading to involuntary commitment. See Comment to Rule 1.14 [Disclosure of the Client's Condition].
The Comments to Rule 1.14 suggest that the lawyer ". . . seek guidance from an appropriate diagnostician." Attorney should be commended for soliciting advice from the neurologist in determining the nature of Client's condition.
Once a guardian is appointed for the client, if the attorney still wishes to withdraw he must meet the requirements of Rule 1.16.