Wisconsin Lawyer
Vol. 84, No. 8, August 2011
The accompanying article speaks to the ethical dilemma of a lawyer who is required to appear on behalf of a client (and may not be allowed to withdraw) despite the client’s failure to communicate with the lawyer or give any direction to the lawyer regarding the objectives of the representation. The author suggests that the lawyer is placed in the ethical conundrum of being forced by the court to provide representation on behalf of a client when the lawyer has no clear knowledge or understanding of the client’s desires. The author also suggests that this constitutes a violation of the professional conduct rules because the lawyer is unable to provide competent representation to the uncommunicative client.
Although there are no decisions or disciplinary proceedings that provide guidance, it is clear that the lawyer is being asked to provide representation even though the lawyer has no direction concerning or understanding of the client’s objectives for the representation. SCR 20:1.2 of the Wisconsin Rules of Professional Conduct (the “Rules”) clearly identifies the client as the party determining the objectives of the representation, and the attorney remains obligated to communicate regarding the means that the lawyer will use to attain those objectives. One can easily see why the lawyer is not able to provide competent representation when the lawyer does not know what the client desires and what the client’s position is regarding the proposed termination of parental rights. Further, the lawyer has no factual background with which to provide arguments or responses to the reasons for seeking termination of the parental rights of the client.
Applying the Professional Conduct Rules
SCR 20:1.16(a)(1) requires a lawyer to withdraw whenever continuing the representation will result in a violation of the Rules. If a lawyer, as a result of client noncooperation, is unable to adequately investigate and prepare for a matter, and therefore is unable to provide competent representation as required by SCR 20:1.1, then withdrawal is mandatory. SCR 20:1.16(c), however, provides in relevant part:
“When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for termination.”
Thus, this Rule imposes on the lawyer a mandatory duty to continue representation when ordered to do so by a court even if permissive or mandatory grounds for withdrawal exist. Clearly, SCR 20:1.16(c) elevates the lawyer’s duty to abide by court orders over other duties that the lawyer may owe, such as a duty to cease representation when unable to provide competent representation.
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is past chair of the State Bar Professional Ethics Committee.
Timothy J. Pierce, U.W. 1992, is State Bar of Wisconsin ethics counsel, Madison. Reach him on the ethics hotline – (800) 728-7788, ext. 6168, or (608) 250-6168, or email tpierce@wisbar.org. For more ethics information, visit www.wisbar.org/ethics.
Further, the Rules recognize that, to a certain extent, a lawyer’s ethical duty of competence depends on the circumstances. For example, Comment [3] to SCR 20:1.1 states:
“In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.”
Similarly, Comment [7] to SCR 20:1.2, discussing limited-scope representation, states in relevant part:
“Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.”
Although the Rules do require competent representation and withdrawal when the lawyer cannot provide such representation, a lawyer is required to remain as counsel when ordered to do so by a tribunal. A lawyer abiding by his or her obligation under SCR 20:1.16(c) is not free from the requirements of SCR 20:1.1, but the determination of what constitutes competent representation is appropriately constrained by the circumstances in which the lawyer is forced to operate.
Conclusion
It is highly unlikely that a lawyer would be disciplined for failing to provide competent representation when the client is not communicating with the lawyer and is even violating court-ordered directives to appear at the hearing or to maintain communication with the appointed counsel. The lawyer should carefully and diligently pursue communication with the client and document the client’s failure to respond to communication or requests for information from the lawyer. Although it is unlikely that discipline would be imposed, the lawyer must show that there has been a continual effort to try to communicate with the client regarding the representation.
Wisconsin Lawyer
