It’s 2:38 a.m. on a Monday morning. My iPhone pings to alert me of an email on my law firm account. I roll over to the bedside table, rub my eyes, and attempt to read the message in the dark of my bedroom. The subject reads “VERY CONCERNED” so my attention focuses and I read on.
“You are not doing a good job,” it reads. “I think you are working with the other side.”
My chest tightens and my stress boils up. The message, one of no less than 20 similar messages this same week, is from a client. I consider my options: Do I fire off a reply in the moment in which I express how I truly feel about this issue? Do I ignore this message as having come from an anxious person who cannot help but express their own worries and fears about their legal case? Do I need to extricate myself from representing this client? I return to bed and lay down, having decided not to respond, and stare at the ceiling, going over ways to deal with this client, until my alarm tells me it is time to start my day. Her message, like a poisonous seed, grows in my mind for all of the following day.
As lawyers, we must fully expect to meet the needs of our clients, to answer their questions, and to counsel them as to their best courses of action. At root, we provide a service to people who rely on our expertise to make important decisions and to resolve complicated disputes. And many of us earn top dollar to be available to our clients at all times.
But here is where my story takes a turn: I am a legal aid lawyer and as such do not charge my clients for my services. I represent low-income individuals in a high-volume eviction-defense practice in New York City and I have 30 to 40 clients at any given time. And as a lawyer at a non-profit law firm, I don’t have a legal assistant and rarely have a team to address client needs. Therefore, I alone am left to respond to any and all client needs any time they arise. Moreover, in a practice in which we are trying to help as many people as possible, and where our jurisdiction is adopting a “right-to-counsel” model, efficiency and effectiveness are each vital. So any unnecessary time spent on one client impacts on other client work.
Unfortunately, in this context and in many others, our time seems to be valued less because we don’t bill for it. Also, judges can be reluctant to grant motions to discharge legal aid lawyers because these lawyers serve as buffers between the court and difficult litigants. Similarly, judges may realize that allowing a legal aid lawyer to withdraw from representation means that the litigant is unlikely to obtain any other representation. So a judge may allow a toxic attorney-client relationship to persist.
That there is a critical need for quality legal representation for the poor is a starting point for analysis. Once an attorney is appointed for an indigent person, that attorney should be bound to see that representation through. Indigent clients are often facing economic, social, and legal problems and are among the most psychologically fragile clients of any that a lawyer may take on. It is often the very same issue that makes a client more challenging to represent that causes the client to need legal representation. For example, in my world, a client’s obsessiveness in dealing with his lawyer may be related to the compulsion that causes him to face eviction for being a hoarder.
We, as lawyers, are bound by ethical rules, many of which govern our duties to our clients. We must be professionally competent, diligent, and hold our clients’ confidences and secrets.
Rule 1.2 guides lawyers on the scope of representation. Comment  to this rule states:
Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. On the other hand, lawyers usually defer to their clients regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client’s objectives. Because of the varied nature of the matters about which a lawyer and client might disagree, and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(c)(4). Likewise, the client may resolve the disagreement by discharging the lawyer, in which case the lawyer must withdraw from the representation. See Rule 1.16(b)(3).
This comment contains several important guiding principles: that clients should defer to lawyers on technical, legal, and tactical matters; that a lawyer may withdraw from representation if there is a fundamental disagreement with the client.
Rule 1.14, “Clients with Diminished Capacity,” section (b) states:
When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
There are also rules for mandatory withdrawal from representation, listed in ABA Model Rule 1.16:
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
(3) the lawyer is discharged.
Permissive withdrawal is more complex and subjective. Principally, a withdrawal must not prejudice the rights of a client.
The Model Rules 1.16 (b) state the rule for when an attorney may seek to terminate representation:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
In New York, which adopted the Model Rules with some variance in 2008, Rule 1.16 looks a bit different:
(c) Except as stated in paragraph (d), a lawyer may withdraw from representing a client when: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer’s services to perpetrate a crime or fraud; (4) the client insists upon taking action with which the lawyer has a fundamental disagreement; (5) the client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees; 91 (6) the client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law; (7) the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively; (8) the lawyer’s inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal; (9) the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively; (10) the client knowingly and freely assents to termination of the employment; (11) withdrawal is permitted under Rule 1.13(c) or other law; (12) the lawyer believes in good faith, in a matter pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal; or (13) the client insists that the lawyer pursue a course of conduct which is illegal or prohibited under these Rules.
Rule 1.16 (c)(7) and (12), are particularly relevant for this discussion:
(7) the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively;
(12)the lawyer believes in good faith, in a matter pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal;
What is striking about Rule 1.16 in both the Model Rules and the New York provisions is their subjectivity and vagueness. The term “fails to cooperate” in the New York rules implies that the client is unavailable or unwilling to provide the necessary information for the representation. The term “unreasonably difficult,” in both rules, seems ripe for second-guessing in its application. And carrying out “employment effectively” in the New York rule also seems to be a subjective standard: One can simply work harder to make the employment effective with respect to a challenging client.
The law relating to these provisions, comprised of judicial decisions and ethical opinions, similarly leaves the legal aid lawyer with little guidance as to when to consider terminating a representation. Almost all of the cases on this subject relate to the termination of representation where a paying client makes representation “unreasonably difficult.” But what of the free lawyer?
In Green v. Gasparini, 24 A.D.3d 505 (2d Dept. 2005), the Appellate Division reversed the trial court and allowed an attorney to withdraw from representing a client where the client continuously failed “to cooperate with her counsel.” Previously, in Walker v. Mount Vernon Hosp., 5 A.D.3d 590, the same court held that counsel had “demonstrated good cause in support of its motion for leave to withdraw …”
In Ceitlin v. City of New York, 840 N.Y.S.2d 696, a trial court considered the circumstances under which appointed counsel could seek leave to withdraw as counsel. In that case, the Office of the Corporation Counsel for the City of New York sought to withdraw from representation of a municipal employee. The trial court, relying on Wong v. City of New York, 174 A.D.2d 486 (1st Dept. 1991), noted that the statute (General Municipal Law §50-k) giving Corporation Counsel the duty to represent municipal employees conditions representation on “the full cooperation of the employee in the defense of such action or proceeding …,” but nevertheless denied the motion to be relieved as counsel.
Comments to Rule 1.16 seem to discourage a lawyer from seeking to terminate representation where the basis is that the work is more significant than the fee originally agreed upon:
[8A] Continuing to represent a client may impose an unreasonable burden unexpected by the client and lawyer at the outset of the representation. However, lawyers are ordinarily better suited than clients to foresee and provide for the burdens of representation. The burdens of uncertainty should therefore ordinarily fall on lawyers rather than clients unless they are attributable to client misconduct. That a representation will require more work or significantly larger advances of expenses than the lawyer contemplated when the fee was fixed is not grounds for withdrawal under paragraph (c)(5). (emphasis added).
This comment also places the onus on the lawyer to foresee the scope of and challenges to a representation of a client. Thus, where a representation of a client becomes more time consuming and resource intensive for the lawyer, he or she cannot seek termination solely for that reason.
So how does Rule 1.16 apply to an attorney who works as a public defender or a legal aid lawyer?
Anyone who has worked in a public school, hospital, or courthouse knows that the most vulnerable people in our society need the assistance of social workers and other professionals to help them address underlying issues. As a lawyer who is not a social worker, my judgment and expertise often strains to confront the real problems that my clients face. On the other hand, my attempts to address my clients’ legal needs are often hampered by my failure to be able to address these underlying issues. As such, my failures to address the needs of my most challenging clients impacts my own well-being, stress, and workflow. Work on these difficult cases impacts the time and energy that I have to assist and represent other clients.
In conclusion, the ethical rules must address the conditions under which a legal aid lawyer may seek permissive withdrawal from representation. The “good cause” basis for withdrawal must be more explicitly stated. Statutes creating a “right to counsel” must also include language about the conditions imposed on clients to comply, cooperate and work with their appointed counsel. And finally, courts should apply a more liberal reading of the existing rules in 1.16 and consider the unique circumstances faced by legal aid attorneys in this context.
Sateesh Nori is Attorney in Charge, Queens Neighborhood Office, The Legal Aid Society. Katelyn Dooley, a student at Northeastern Law School, assisted in the preparation of this article.