New York State
Bar Association
Committee
on Professional Ethics
Opinion
1144 (1/29/2018)
Topic: Communications with
Client; Withdrawal from Representation of Difficult Client
Digest: A lawyer
may place time and manner limitations on communications with a client provided
the lawyer promptly informs and consults with the client on matters within the
lawyer’s duty of communication. If a
breakdown occurs in communications between a lawyer and client such that
representation cannot be carried out effectively, the lawyer may seek to
withdraw from representing the client subject to any applicable rule of court.
Rules: Rules 1.2(a), 1.4,
1.16, 1.14.
FACTS
1. A
court assigned the inquirer to represent an individual who has been charged
with several criminal offenses. Prior to
the inquirer’s assignment, the client had been represented by a number of other
lawyers. The client has unsuccessfully
moved to have the inquirer relieved as counsel.
2. The
client has ongoing mental health issues for which the client receives
treatment. According to the inquirer, the client is physically intimidating,
verbally abusive, and often non-responsive.
The inquirer wishes to impose some restrictions on the time and manner
in which the client may communicate with the lawyer, including limiting
communications to scheduled appointments and written communications. If the client does not abide by these limits,
or otherwise continues to disrupt communications, then the lawyer wishes to
consider withdrawing from the representation.
QUESTIONS
3. May
a lawyer place reasonable restrictions on the time and manner of communications
between the lawyer and client? Under
what circumstances may a lawyer withdraw from representation of a difficult
client?
OPINION
4. The
New York Rules of Professional Conduct (the “Rules”), in Rule 1.4, entitled
“Communication,” sets out a lawyer’s obligations concerning communicating with
clients. The Rule says:
(a) A
lawyer shall:
(1) promptly
inform the client of:
(i) any
decision or circumstance with respect to which the client’s informed consent,
as defined in Rule 1.0(j), is required by the Rules;
(ii) any information required by court rule or
other law to be communicated to a client; and
(iii) material
developments in the matter including settlement or plea offers.
(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 a client’s reasonable requests 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 these Rules 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. Three
core principles can be drawn from this Rule.
First, a lawyer must keep the client apprised of material circumstances
and developments in the matter. Second,
a lawyer must comply with a client’s reasonable requests for
information. Third, a lawyer must
reasonably consult with a client both about the means of accomplishing the client’s
objectives and about other decisions regarding the representation, some of
which are within the client’s province to decide. See Rule 1.2(a). On the first two of these – on developments
in the matter and requests for information from the client – the lawyer must
communicate promptly. Although a
lawyer’s obligations under this Rule are thus robust, neither Rule 1.4 nor
other Rules prescribe a specific manner of communication, except when a
Rule requires written instruments in specific circumstances, see, e.g., Rule
1.5(b), (c), (d)(5) (governing legal fees); Rule 1.7(b) (governing informed
consent to conflicts); Rule 1.8(a) (governing business transactions with
clients).
6. Rule
1.4’s obligation that a lawyer keep the client “reasonably informed about
the status of the matter” can be fairly read to require a lawyer to use methods
of communication that are effective, timely, and not unduly burdensome to the
client, but the Rule does not prevent a lawyer from selecting the manner of
communication. Rule 1.4(a)(4)
specifically indicates that a lawyer need comply only with reasonable requests
for information, thereby allowing lawyers the flexibility to curtail
conversations or meetings that stray beyond the relevant substance of the
representation. This provision expresses
the Rule’s recognition that some clients may thrust upon their lawyers
burdensome, immaterial requests for information and that lawyers need not meet
such unreasonable demands.
7. Similarly,
Rule 1.4 does not prohibit a lawyer from controlling the timing of client
communications. Other than the general
requirement that developments in the case and responses to reasonable requests
for information be “promptly” communicated, the Rule does not curtail a lawyer’s discretion to schedule the
specific timing of lawyer-client communications. Notably, Comment [4] to Rule
1.4 provides that when a prompt response to a client’s reasonable request for
information is not feasible, the lawyer (or a member of the lawyer’s staff)
should “acknowledge receipt of the request and advise the client when a
response may be expected.” That Comment
is consistent with the notion that a lawyer – often balancing competing
obligations – needs to have reasonable latitude to schedule the timing of
client communications.
8. Consistent
with the foregoing, we believe that the Rules do not prohibit a lawyer from
responding to a challenging client by limiting the time and manner of
communications with the client as long as the lawyer fulfills the substantive
communicative requirements contained in Rule 1.4. Cf. N.Y. State 1124 (2017) (noting
that no provision in the Rules mandates how lawyers must communicate with each
other and that lawyers should work out between themselves the methods of
communication that will best facilitate resolution of the matter at hand). Hence, a lawyer may limit communications to
scheduled appointments or to some form of written transmission readily
accessible to the client.
9. Whether
and when a lawyer may seek to withdraw from representing a difficult client is
controlled by Rule 1.16, which governs “declining or terminating
representation.” Rule 1.16(c) provides,
in relevant part, that “except as stated in paragraph (d), a lawyer may
withdraw from representing when, among other reasons, the “withdrawal can be
accomplished without material adverse effects on the interests of the client,”
Rule 1.16(c)(1), “the client fails to cooperate in the representation or
otherwise renders the representation unreasonably difficult for the lawyer to
carry out the representation effectively, Rule 1.16(c)(7), or “the lawyer
believes in good faith, in a matter before a tribunal, that the tribunal will
find the existence of other good cause for withdrawal” Rule 1.16(c)(12). Rule 1.16(d), in turn, provides that “if permission
for withdrawal from employment is required by the rules of a tribunal, a lawyer
shall not withdraw from employment in a matter before that tribunal without its
permission. When ordered to do so by a
tribunal, a lawyer shall continue representation notwithstanding good cause for
terminating the representation.”
10. Because
the inquirer has already appeared as counsel for the client in the pending
matter, the inquirer may withdraw only with the permission of the
tribunal. The reasons for permissive withdrawal
in Rule 1.16(c) are disjunctive, so any one of the reasons set forth there may
suffice. The most obvious candidate
emerging from the facts – and thus the most apparent reason why the inquirer
may seek permission for withdrawal from the tribunal – is whether the client’s
conduct will prevent the inquirer from “carry[ing] out the representation
effectively” under Rule 1.16(c)(7). In most representations, and certainly in
defending against a criminal prosecution, effective representation requires meaningful
communication between a lawyer and client.
If the client’s verbal abuse and non-responsiveness result in a collapse
of meaningful communication, then effective representation is almost certainly
not possible. See Roy D. Simon
& Nicole Hyland, Simon’s New York Rules of Professional Conduct Annotated,
959 (2017) (noting, as examples of client conduct that make it unreasonably
difficult to carry out representation effectively, “a client’s constant calls
to talk about the case or request information beyond what is fruitful or
reasonable” and “a client’s abusive or threatening communications to the
lawyer”); see also Cahill v. Donahoe, 2014 WL 3339787 (W.D.N.Y. 2014)
(granting motion to withdraw where “the attorney-client relationship is no
longer productive and . . . the discord that has characterized their
relationship over many months appears irreparable.”). If an irreparable disintegration in
communication has occurred, the inquirer may ask the court for permission to
withdraw.
11. That
the client here has mental health issues for which the client is receiving
ongoing treatments makes it appropriate to mention Rule 1.14, which governs a
lawyer’s responsibilities to clients with diminished capacity. See N.Y. State 949 ¶ 20 (2012). Under Rule 1.14, a lawyer must “as far as
reasonably possible” maintain a normal lawyer-client relationship. That a client suffers from mental illness
does not diminish the lawyer’s responsibility to treat the client attentively
and with respect. Rule 1.14, Cmt. [2].
Rule 1.14 permits a lawyer to take protective action when the lawyer
reasonably believes that the client is at risk of physical, financial, or other
harm unless such action is taken. “Any
condition that renders a client incapable of communicating or making a considered
judgment on the client’s own behalf casts additional responsibilities on the
lawyer.” Rule 1.14, Cmt. [1]. “Before
considering what measures to undertake, lawyers must carefully evaluate each
situation based on all of the facts and circumstances.” N.Y. State 986 ¶ 12 (2013). In N.Y. State 986, we added (at ¶ 13):
Any protective action taken by the lawyer should be limited
to what is essential to carry out the representation. Thus, the lawyer may
consult with family members, friends, other individuals, agencies or programs
that have the ability to take action to protect the client. The Rule does not specify all of the
potential protective actions that may be undertaken, but it makes clear that
seeking the appointment of a guardian is the last resort, when no other
protective action will protect the client’s interests.
12. If
the inquirer remains on the case, the inquirer will need to maintain a normal
lawyer-client relationship “as far as reasonably possible,” but, in evaluating
the situation, the inquirer may conclude that protective actions are available
to facilitate communication with the client so that the lawyer may enhance the
prospect of effective representation.
CONCLUSION
13. A
lawyer may place reasonable limitations on the timing and manner of client
communications. When there is a
breakdown of communications between a lawyer and client such that
representation cannot be carried out effectively, the lawyer may seek to
withdraw from representing the client.
(36-17)