The State Bar of Michigan recommended that judges rarely dig into a lawyer's reasons for withdrawal from a case and that lawyers concerned about mental incapacity of a client should ask the client to submit to an evaluation, in the bar's first pair of ethics opinions of the year (article available here).
The bar provided direction to judges about when to ask for more information on an attorney's motion to withdraw, in an informal opinion published on its site this week, saying a request seeking the details behind a withdrawal should be "exceptional, rather than normal practice" and should be narrowly tailored to the information needed to decide the motion to withdraw.
"Discretion is the rule to be followed" in motions to withdraw, the bar said, noting the potential for privileged information to be exposed and for a client to be disadvantaged in the proceeding if the attorney's reason for withdrawal reveals unethical or unseemly behavior on the part of the client.
Ordinarily, there should be no need for a judge to inquire beyond the general reason for withdrawal, such as a statement from the attorney that "professional considerations require termination of the representation" or that there has been a "breakdown in the lawyer-client relationship."
Attorneys, if asked to reveal privileged information, can respond by telling the judge they cannot provide the information because it is protected by attorney-client privilege under Michigan Rules of Professional Conduct 1.6, at which point the judge should "consider whether it is necessary" to order the attorney to disclose privileged information, the bar said.
Judges should "proceed cautiously" in asking attorneys to divulge privileged information about their relationship with a client, the bar said.
The bar also issued an informal opinion advising lawyers on how to ethically represent a client who has diminished mental capacity.
When a client has a diagnosed mental disability that is affecting decision-making capability, a lawyer can take certain "protective actions," such as the appointment of a legal guardian. But the bar cautioned that in general lawyers should "take the least intrusive steps necessary to protect the client's interest" and should always communicate concerns and options with the client before taking such steps.
If the client refuses evaluation, the lawyer should continue to represent the client as best as they can, unless the client's apparent condition is harming the lawyer's ability to represent them, the bar said. For example, if the client refuses to communicate or becomes hostile toward the lawyer, the lawyer may have to withdraw from the matter as "a last resort," the bar said.