Feb. 18, 2015 – It can happen to any lawyer: a client who fails to respond to any attempt at contact or communication. Is the lawyer required, then, to withdraw from the case according to the Rules of Professional Conduct?
Question
I have been appointed to represent a client in a termination of parental rights action. I have never spoken with the client even though I have made numerous efforts to contact him. He does not answer his telephone, does not return my telephone calls even though I have left detailed voice messages, and does not reply to my letters. Am I required to withdraw from representation?
Answer
Have an Ethical Dilemma?
Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel Timothy Pierce and assistant ethics counsel Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
As a State Bar member, you have access to informal guidance in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys. To informally discuss an ethics issue, contact Pierce or Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m. to 4 p.m.
A lawyer is required by SCR 20:1.16(a)(1) to withdraw from representation if “the representation will result in the violation of the Rules of Professional Conduct or other law.” The application of this Rule can be challenging for two reasons. The first reason is the level of knowledge that triggers a lawyer’s obligation to withdraw, and the second is the broad and varied application of this Rule.
The Rule does not specify the level of knowledge necessary to trigger a lawyer’s obligation to withdraw, i.e., the standard that a lawyer must use to determine when representation “will result” in a violation. The Rule does not state whether the lawyer must “know”1 that a violation will result or whether the lawyer need only “reasonably believe” or be “reasonably certain” that a violation will result. There is no Wisconsin case or Ethics Opinion that clarifies what level of knowledge triggers the lawyer’s obligation to withdraw under SCR 20:1.16(a)(1). Because the Rule is prospective, and because one cannot “know” the future, it seems reasonable to conclude that a lawyer must withdraw when the lawyer “reasonably believes” that a violation will result.2
In addition, the application of SCR 20:1.16(a)(1) is broad and varied because it is the procedural mechanism for carrying out the commands of other rules, and it depends on the stage of the representation and the facts of the matter.
A lawyer's representation of a client may be impeded by the fact that the lawyer cannot locate, or communicate with, the client. The Rules of Professional Conduct give the client substantial decision-making authority, and a missing client, or a client that is unwilling to communicate with the lawyer, cannot make the necessary decisions. SCR 20:1.2 requires a lawyer to “abide by the client’s decisions concerning the objectives of representation.” If the client is not available to advise the lawyer about the client’s objectives, the lawyer cannot substitute his or her judgment for that of the client. “It is difficult to see how the lawyer could comply with the requirements of Rule 1.2(a) if the client has disappeared”3 or is unwilling to communicate with the lawyer.
Tim Pierce is ethics counsel with the State Bar of Wisconsin. Reach him by email. Ethics question? Call the Ethics Hotline at (608) 229-2017 or (800) 254-9154.
Aviva Kaiser is assistant ethics counsel with the State Bar of Wisconsin. Reach her by email.
Nor, under these circumstances, can the lawyer communicate with the client so that the client can effectively participate in the representation. SCR 20:1.4 establishes a mandatory duty of communication and consultation.4 The absence or unavailability of the client makes it impossible for the lawyer to consult with the client: the client is not available to participate in discovery, assist in the preparation of the case, testify at the hearing or make critical decisions about the representation. Moreover, under SCR 20:1.1, a lawyer may not be able to provide competent representation under these circumstances.5
It appears from the question asked that the lawyer has made reasonable efforts to contact the client. It also appears that the lawyer may reasonably believe that continued representation will result in a violation of SCR 20:1.2 and SCR 20:1.4. Consequently, the lawyer would be required to move to withdraw pursuant to SCR 20:1.16(a)(1).6
SCR 20:1.16(c) requires a lawyer to “comply with applicable law requiring notice to or permission of a tribunal when terminating representation.” Even when there is good cause to terminate representation, the lawyer must continue representation if so ordered by the tribunal.
Endnotes
1 “Know” is defined by SCR 20:1.0(g) as “actual knowledge of the fact in question. Knowledge may be inferred from the circumstances.”
2 The Restatement (Third) of the Law Governing Lawyers §32(2)(a), which is nearly identical to SCR 20:1.16(a)(1), also requires withdrawal from the lawyer-client relationship whenever “the representation will result in a violation” of the other rules of professional conduct or other law. Unlike the Wisconsin Rule, however, the Restatement (Third) of the Law Governing Lawyers (the Restatement) specifically takes the position that a lawyer’s “reasonable belief” that a violation will occur is sufficient for withdrawal, even if that belief later turns out to be wrong. See §32 Comment f of the Restatement.
3 Kentucky Ethics Op. E-433 (2012).
4 SCR 20:1.4 Communication
(a) A lawyer shall:
(1) Promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in SCR 20:1.0(f), is required by these rules;
(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests by the client for information; and
(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
5 “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. SCR 20:1.1. Courts have, for example, faulted lawyers for failing to withdraw when workload prohibits competent representation. Mulkey v Meridien Oil, 143 F.R.D. 257 (W.D. Okla. 1991). In addition, ethics opinions have concluded that lawyers must refuse new cases when workload prohibits competent representation, ABA Formal Ethics Op. 06-441 (2006), Wisconsin Ethics Op. E-84-11 (1984), or when the lawyer’s experience, ability or resources prohibit competent representation.
6 In addition, SCR 20:1.16(b)(6) permits, but does not require, withdrawal when the representation “has been rendered unreasonably difficult by the client.” Consequently, when the lawyer does not reasonably believe that a violation will result, the lawyer may – but is not required to – move to withdraw.
