Opinion Number 658
NEW YORK COUNTY LAWYERS’ ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
In answering questions this Committee acts by virtue of the following provision of the By-Laws of the Association. Article 54, Section 3:
“This Committee shall have power, when consulted, to advise inquirers respecting questions or proper professional conduct, reporting its action to the Board of Directors from time to time.”
It is understood that this committee acts on specific questions submitted ex parte and in its answers base. its opinion on such facts only as are set forth in the question.
QUESTION NO. 6 58
May an attorney serving as appointed counsel representing respondents in child protection and parental rights termination proceedings move to be relieved as counsel when the client fails to appear for trial? What are the ethical requirements delineating the attorney’s participation in the subsequent proceeding when his client is absent and his motion to withdraw has been denied?
ANSWER TO QUESTION NO. 658
The inquirer states that no jurisdictional issues are involved because, his clients have appeared in the proceedings, and he has bad an opportunity to meet with them at least at their intake appearance However, the degree of information obtained from the client and the amount of trial, preparation possible, vary due to the limited circumstances of the initial, interview.
As set forth below, while the question of withdrawal from such a representation is a matter of ethics, the al lowan.ee of the application of withdrawal is a question of law. Further, the kind and degree of permissible activity by an attorney in representing an absent client in a proceeding is a matter of professional judgment, subject to certain ethical considerations.
The parameters of when it is ethically proper for an attorney to withdraw from a representation are set forth generally at DR 7-101(A)(2) and, more specifically, at DR2-110. Under the facts stated, it is ethically proper tor an attorney to seek withdrawal under DR2-110(C) (1) (d). The rule states that the “lawyer may not request permission to withdraw in matters pending before a tribunal . . . unless such request or such withdrawal is because . . . [h]is client . . . [b]y other conduct renders it unreasonably difficult for the lawyer to carry out his employment effectively.” However, in proceedings such as the above, withdrawal is only allowed by application to the court, and the court’s determination and rules regarding the grounds for such application must govern under DR2- 110(A) (1). See New York City Opinion 80-84 (1980); New York State Opinion 440(1976) . DR2-110(A) provides in pertinent part:
If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer; shall not withdraw from employment in a proceeding before that tribunal without its permission.
In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to: avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules.
If required. by the court to continue the representation, DR7-101(B) (1) is governing. The rule states that “[i]n his representation of a client, a lawyer may . . . [w]here permissible, exercise his professional judgment to waive or fail to assert a right or position of his client.” Such an exercise of professional judgment should be influenced by considerations outlined .in EC7-9, which suggests that in exercising his professional judgment, “a lawyer should always act; in a manner consistent with the best, interests of his client.” Furthermore, EC7-11 provides that “[t]he responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client, the obligation of a public officer, or the nature of a particular proceeding.” Reference should also be made to EC7-12 where there is a question concerning the mental or physical capacity of the client.
It should also be stated that in a situation where one is serving as assigned counsel and may have only one occasion to meet the client prior to a trial date, it is incumbent unco the attorney to fully inform the client at their initial meeting of the potential consequences of the client’s failure to appear for a scheduled court date. Under EC6-4 an attorney undertaking a representation is obligated to prepare adequately for the matter at hand at the first opportunity to do so.
February 2, 1983