Nov. 21, 2012 – Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by State Bar’s ethics counsel org tpierce wisbar Timothy Pierce, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
I represent a mother seeking the termination of the parental rights of the father of her two children. The father is indigent and has appointed counsel representing him in this matter. A few days ago, the father showed up at my office unannounced. I had my secretary tell him that I couldn’t speak to him because he was represented, but he insisted that he wanted to see me and said that he no longer had a lawyer. I met the father and he said that he didn’t need or want a lawyer, his appointed lawyer was “not my attorney” and he just wanted to give up his rights and get the whole thing over with. I called his appointed lawyer and got a message that he was out of the office for few days so I left a message on the machine.
After asking again and being assured that the father did not want a lawyer in this matter, I had the father sign affidavits stating that he wanted to terminate his rights with respect to the children and filed them with the court. I just got an angry phone call from opposing counsel saying that I’m going to have to answer to the OLR for what I’ve done. Will I?
A client may not waive the protections of SCR 20:4.2 and when an opposing party claims to have discharged their lawyer, the lawyer should not discuss the matter with the person until confirming that fact or having taken reasonable steps to do so.
References: SCR 20:4.2; OLR Private Reprimand 2003-4.