February 22, 2019
A lawyer may not terminate representation of a client under MRPC 1.16(b)(3) based upon a client’s refusal to accept a plea agreement in a pending criminal case unless the lawyer notifies the client of the need for court approval to withdraw and obtains said approval under MRPC 1.16(c) and MCR 2.117(c)(2). However, before notifying the client that the lawyer must obtain the court’s approval to withdraw, a lawyer first must comply with MRPC 1.2(a), 1.3, and 3.2.
References: MRPC 1.2(a), 1.3, 1.16(b)(3), and 3.2.
By order dated May 23, 2018, the Michigan Supreme Court amended MRPC 1.16(b) to provide that an attorney may only seek to withdraw "after informing the client that the lawyer cannot do so without permission from the tribunal for the pending case."1
The amendment of MRPC 1.16(b) addresses, among other things, the issues raised during the Court’s consideration of People v. Townsend, docket 153153, to ensure that criminal defendants are made aware of the fact that a lawyer cannot withdraw without the court’s permission.2 The concern was that a lawyer in a criminal case could pressure a client to accept a plea bargain by threatening to withdraw from the representation.
Although the amendment to MRPC 1.16(b) partially addresses this concern by requiring the lawyer to disclose that the lawyer must seek court approval, the amendment does not inform that lawyer of the analysis the lawyer must undertake in a pending criminal matter before telling the client the lawyer must seek the court’s approval to withdraw and does not address how and when the lawyer must make such a disclosure in order to make that disclosure meaningful and avoid undue influence upon the client.
MRPC 1.16(b)(3) provides that "[e]xcept as provided in paragraph (c), a lawyer may withdraw from representing a client if . . . the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent." Refusing a plea offer would never be a repugnant course of action. Further, the lawyer could not tell the client he would seek to withdraw, but would need the court’s approval, unless the lawyer had a good faith and well-founded belief that refusing the plea offer was indeed imprudent and that there was a reasonable chance the court would approve his or her motion to withdraw. Finally, the lawyer could not tell the client he would seek the court’s approval to withdraw unless the lawyer in fact intended to file the motion to withdraw.
The decision to accept or reject a plea offer must be the client’s. With respect to criminal cases, MRPC 1.2(a) provides that "the lawyer shall abide by the client's decision, after consultation with the lawyer, with respect to a plea to be entered." While it is certainly the lawyer’s obligation to provide counsel concerning a decision to accept or reject a plea, it is ultimately the client’s decision to make. Finding that the client’s decision is "imprudent" requires more than the refusal of what the lawyer believes is a reasonable plea offer. The lawyer must conclude that the refusal is imprudent under a careful consideration of all of the circumstances involved. In conducting this analysis, the lawyer cannot place his or her own interests above those of the client. Instead, MRPC 1.2(a) requires: "A lawyer shall seek the lawful objectives of a client through reasonably available means permitted by law and these rules."
Most jurisdictions have interpreted Model Rule 1.2(a) to require a lawyer to continue to represent a client who has refused to accept a plea offer.3 While we cannot conclude globally that there could never be a circumstance under which a lawyer could seek to withdraw after a client refuses a plea offer, the circumstance would be highly unusual.
Further, MRPC 1.3 requires that a lawyer "act with reasonable diligence and promptness in representing a client." The comments to MRPC 1.3 note that, "[u]nless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client." Thus, a lawyer who enters into representation of a client in a pending criminal matter is not at liberty to limit representation to obtaining a favorable plea bargain. Refusal of a plea offer is always a possibility, and the lawyer must be prepared for this eventuality.4 A lawyer cannot seek to withdraw based on inconvenience or a failure to consider the rejection of a plea agreement.
MRPC 3.2 further requires that "[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." Read together, MRPC 1.3 and 3.2 require the lawyer to make reasonable efforts to prepare for trial notwithstanding a recommendation by the lawyer to accept a plea offer.
In Townsend, supra, the defendant entered a guilty plea in a criminal case and then subsequently challenged the validity of the plea at the sentencing hearing.5 The defendant alleged he was coerced into taking the plea because his attorney had told him he would withdraw if he did not accept the plea.6 Under the amendment to MRPC 1.16(b), the attorney would be required to notify his client of the need for court approval prior to withdrawing. However, before making such a statement, the lawyer would need to closely consider the circumstances of his client rejecting the plea offer. Some relevant questions the attorney should ask are:
- Is the rejection of the plea "imprudent" or a less preferred course of action? Unless there is an articulable reason to believe the rejection is imprudent, the lawyer cannot seek to withdraw and cannot tell the client he will seek to withdraw.
- Given the stage of the proceeding and the circumstances which lead the lawyer to conclude rejection of the plea offer is imprudent, is there a reasonable possibility the court will approve the lawyer’s request to withdraw? If not, the lawyer cannot file the motion and cannot tell the client he will seek to withdraw, even with disclosure that the lawyer would need the court’s approval.
- Is the lawyer’s conclusion that the rejection of the plea is "imprudent" based upon the lawyer’s lack of preparation or inability to proceed to trial? If so, the lawyer cannot seek to withdraw or tell the client the lawyer will seek to withdraw.
- Would a motion to withdraw violate MRPC 3.2 by delaying trial? If so, and especially if the client is incarcerated pending trial, the lawyer cannot file the motion and cannot tell the client the lawyer will seek to withdraw, even with disclosure that the lawyer would need the court’s approval.
Finally, even if the lawyer can proceed to file the motion to withdraw and can inform the client the lawyer will do so, but with the court’s approval, the disclosure about needing the court’s approval must be meaningful. MRPC 1.16(c) provides "when ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding the good cause for terminating representation." Thus, the lawyer would need to disclose what good cause is and that, even if the lawyer demonstrated good cause, the court might still order the lawyer to continue the representation and proceed to trial.
Thus, the amendment requiring disclosure should not be read as permission to a lawyer to state he will seek to withdraw if the client rejects a plea offer so long as the lawyer also discloses he would need the court’s approval to withdraw. Instead, before making any statement about withdrawing, the lawyer must 1) have a good faith belief that the rejection of the plea offer is imprudent; 2) intend to in fact file the motion; 3) have a reasonable belief that the court would grant the motion to withdraw; 4) not be motivated by the lawyer’s own interest or lack of preparation for trial; and 5) believe that filing a motion to withdraw would not prejudice the client by delaying trial. If all of these considerations are satisfied, the lawyer can make the statement that he will seek to withdraw, but would need the court’s approval to do so, only while disclosing that the lawyer will have to demonstrate to the court good cause to withdraw, what the lawyer believes the good cause is in the client’s matter, and that the court may reject the lawyer’s request to withdraw even if the lawyer demonstrates good cause.
A lawyer may not terminate representation of a client based upon a client’s refusal to accept a plea agreement in a pending criminal case under MRPC 1.16(b)(3) unless the lawyer notifies the client of the need for court approval to withdraw and obtains said approval under MRPC 1.16(c) and MCR 2.117(c)(2). However, before notifying the client that the lawyer must obtain the court’s approval to withdraw, a lawyer first must comply with MRPC 1.2(a), 1.3, and 3.2.
1. Amendment of Rule 1.16 of the Michigan Rules of Professional Conduct
3. Accord State v. Jones, 278 Mont 121, 923 P2d 560, 566 (1996) (Allowing a lawyer to withdraw from representing a client because the client rejected a plea agreement would run "directly afoul of Rule 1.2(a)" of the Model Rules of Professional Conduct.); McConnell v. State, 125 Nev 243, 212 P3d 307, 314 (2009) ("Although counsel certainly owes a duty to advise his client whether to plead guilty, counsel does not have the authority to override a defendant's decision to plead guilty. That decision is reserved to the client."); See also In re Chavez, 299 P3d 403 (New Mex 2013) ("a lawyer cannot reasonably agree to represent a criminal defendant for the sole purpose of negotiating a plea…"); but see Chapman v. Commonwealth, 2007 Ky LEXIS 178 (Ky 2007) (The Court took notice that SCR 3.130(1.16)(b)-(c) "permits an attorney to withdraw from representing a client if the client persists upon pursuing an objective that the attorney considers ‘repugnant or imprudent.’ But counsel in this case were not required to continue as Chapman’s actual counsel of record-rather, they were required to function in the limited role of standby counsel.")
4. Accord In re Chavez, 299 P3d 403. ([O]nce the defendant rejected the plea offer, Respondent should have diligently continued his trial preparation rather than attempting to abandon his client.)
5. Id. at 2-3
6. Id. at 6.