June 13, 1981
A lawyer is prohibited from withdrawing from employment in a case in which the lawyer has been appointed by a court to represent an indigent criminal defendant without the consent of the trial court.
A lawyer is prohibited from disclosing the "confidences" and "secrets" of the client for the purpose of securing from a trial court an order allowing the lawyer to withdraw from a case.
References: DR 2-110, DR 4-101.
An opinion is asked for advice on how to proceed on five cases, all with respect to one client, in which you have unsuccessfully sought from the court leave to withdraw. You indicate that you are court appointed and that you are the fourth attorney assigned to defend this individual. You have submitted a Motion to Withdraw as the attorney assigned to defend this individual. In that Motion you indicate that you wish to withdraw because the defendant has failed to attend appointments with you, that it is essential that you meet with him promptly in order to meet the deadline set by the court with respect to the progress of the case, that the defendant has not cooperated with you, and that the attorney-client relationship has broken down to the point where you can no longer represent the defendant. At the hearing of the matter, you indicated to the judge that you could not elaborate further, inasmuch as to do so would be, in your opinion, d disclosure of the confidences of your client.
Your question is considered in two parts:
- Must you continue to represent this indigent defendant in light of the court's refusal to grant your motion to withdraw?
- May you disclose the confidences and secrets of the client in order to procure from the court an order allowing you to withdraw?
It is necessary in this jurisdiction for a lawyer to secure from a court an order allowing the lawyer to withdraw from employment in a case then pending before that court, particularly with respect to a case in which the lawyer has been appointed by court order to represent an indigent criminal defendant. Thus, under DR 2-110, you are required to continue to represent this indigent defendant until such time as the trial court reverses its position and authorizes you to withdraw, or, in the alternative, (should you decide to proceed, pursuant to the General Court Rules of the State of Michigan), until such time as you obtain from the Appellate Courts, pursuant to their power of superintending control, an order allowing you to withdraw. DR 2-110.
DR 4-101 would prohibit a lawyer from disclosing to a court the confidences or secrets of a client for the purpose of securing from that court an order allowing the lawyer to withdraw from a criminal case pending before that court. DR 4-101 contains only four exceptions to the confidentiality rule, none of which would allow you to make such a disclosure under the circumstances you represent. We have been given no facts as to what information you have concerning your client, and therefore, we assume for purposes of this opinion, only, that that information is, indeed, a "confidence" or "secret," within the meaning of DR 4-101.
We would suggest that you continue to keep the court advised of your client's failure to cooperate with you. In the event that your client makes any accusations of wrongful conduct on your part, you will be permitted, under DR 4-101, to reveal information that might be confidential to the extent necessary to defend yourself against those accusations of wrongful conduct.