Pulling Out: When can a lawyer abandon his client?

Answers to your questions about the news.
April 26 2011 2:07 PM

Pulling Out

When can a lawyer abandon his client?

Gay rights protest. Click image to expand.
An anti-Prop 8 protest

King & Spalding, the law firm that agreed to defend the constitutionality of the Defense of Marriage Act (PDF), withdrew from the case on Monday. House Republicans are furious, and some legal ethicists are concerned that it will undermine people's trust that their lawyer will stick with them. Can your lawyer just drop you?

Under certain circumstances. Generally speaking, the states' rules of professional conduct permit an attorney to dump a client if the breakup won't hurt him, such at the very beginning of the case, or if there's a suitable replacement waiting in the wings. (That's the rationale King & Spalding have used to withdraw from the Defense of Marriage Act case.) However, abandonment may be acceptable even if it harms the client's interests, especially if the client has done something wrong. For example, a lawyer can walk away if the client is engaged in a continuing criminal enterprise, if he's using the lawyer to perpetuate his illegal scheme, or if the client asks the lawyer to do something illegal himself. Deadbeat clients also risk abandonment, as do those who refuse to cooperate in their own representation. If the case has already been filed with a court, the lawyer usually needs the judge's blessing to bow out. In non-litigation matters, no special permission is required.

Withdrawal from representation is a surprisingly lively area of legal ethics. Consider the classic case of the avowed perjurer. Criminal defendants have a constitutional right to take the stand in their own defense. Occasionally, one of them tells his lawyer in advance that his entire line of testimony will be lies. This scenario presents what legal scholar Monroe Freedman famously referred to as the lawyer's "trilemma." The attorney has an obligation to fight for the client's interests, a responsibility to identify perjury to the court, and a duty to keep his client's secrets. Because the client has put the attorney in a situation in which it's impossible to fulfill all three professional obligations, some lawyers see this as a situation that demands withdrawal.

Unfortunately, it's not that easy. As mentioned above, an attorney can't withdraw in the middle of litigation without the judge's permission, and it's indisputably unethical for an advocate to directly inform the judge that his client is a liar. What usually happens in these cases is that the lawyer approaches the bench and asks to beg off the case for vague "ethical reasons." The judge, knowing exactly what's going on, typically denies the request, because the jury would smell a rat if the lawyer were to disappear right before the defendant took the stand. The judge, continuing the Kabuki-style exchange, informs the advocate that he has satisfied his ethical obligations and must continue. In some courts, the lawyer can protect his sense of ethics by simply putting the client on the stand and instructing him to "tell the jury his story," rather than specifically prompting the lies.

There's also the controversial issue of "noisy withdrawal." Sometimes, in the course of a representation, an attorney finds out that his client has been using him as a pawn in a criminal scheme. In such cases, some legal ethicists think it's not enough to withdraw—the lawyer must also publicly disavow his prior actions in representing the client. Government regulators have supported such moves, but they raise serious concerns about confidentiality and the fiduciary duty that lawyers have to their clients—even the bad ones. A noisy withdrawal is tantamount to turning the client in.

Got a question about today's news? Ask the Explainer.

Explainer thanks Stephen Gillers of New York University School of Law and Thomas D. Morgan of the George Washington University Law School.

TODAY IN SLATE

Foreigners

More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

IOS 8 Comes Out Today. Do Not Put It on Your iPhone 4S.

Why Greenland’s “Dark Snow” Should Worry You

Three Talented Actresses in Three Terrible New Shows

The Human Need to Find Connections in Everything

It’s the source of creativity and delusions. It can harm us more than it helps us.

Jurisprudence

Happy Constitution Day!

Too bad it’s almost certainly unconstitutional.

The Ungodly Horror of Having a Bug Crawl Into Your Ear and Scratch Away at Your Eardrum

My Father Was James Brown. I Watched Him Beat My Mother. Then I Married Someone Like Him.

  News & Politics
Weigel
Sept. 17 2014 2:57 PM ISIS Helps Snuff Out Conservative Opposition to Government Funding Bill
  Business
Business Insider
Sept. 17 2014 1:36 PM Nate Silver Versus Princeton Professor: Who Has the Right Models?
  Life
Outward
Sept. 17 2014 1:59 PM Ask a Homo: Secret Ally Codes 
  Double X
The XX Factor
Sept. 17 2014 1:26 PM Hey CBS, Rihanna Is Exactly Who I Want to See on My TV Before NFL Games
  Slate Plus
Slate Fare
Sept. 17 2014 9:37 AM Is Slate Too Liberal?  A members-only open thread.
  Arts
Brow Beat
Sept. 17 2014 1:01 PM A Rare, Very Unusual Interview With Michael Jackson, Animated
  Technology
Future Tense
Sept. 17 2014 12:35 PM IOS 8 Comes Out Today. Do Not Put It on Your iPhone 4S.
  Health & Science
Bad Astronomy
Sept. 17 2014 11:18 AM A Bridge Across the Sky
  Sports
Sports Nut
Sept. 17 2014 3:51 PM NFL Jerk Watch: Roger Goodell How much should you loathe the pro football commissioner?