Can an Illinois lawyer withdraw from a divorce when an irrational client refuses to sign a favorable settlement, and can the lawyer ask the court to consider a guardian?
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This page answers the general question as of 2012. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer obtained what he viewed as a favorable divorce settlement, but the client (who has a history of psychiatric problems and is irrational in discussions) consented to the proposed judgment and then refused to sign, while demanding near-impossible tasks the lawyer believes are not in her interest. The lawyer asked whether he could withdraw and whether he could ask the court to consider appointing a guardian without breaching confidentiality.
On withdrawal, the opinion applies Rule 1.16(b): paragraph (b)(4) permits withdrawal where the client insists on action the lawyer considers repugnant or fundamentally disagrees with, and (b)(6) permits withdrawal where the client has made the representation unreasonably difficult. The lawyer must seek the tribunal's permission under Rule 1.16(c) and, on termination, protect the client's interests under Rule 1.16(d) (reasonable notice, time to find new counsel, return of papers and unearned fees).
On the guardianship question, the opinion reads Rule 1.6 together with Rule 1.14. Although Rule 1.6 protects information relating to the representation, Rule 1.14(b) provides that when the lawyer reasonably believes the client has diminished capacity, is at risk of substantial physical, financial, or other harm, and cannot adequately act in her own interest, the lawyer may take reasonably necessary protective action, including seeking appointment of a guardian ad litem, conservator, or guardian. Under Rule 1.14(c) the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interest. The opinion concludes it would be proper to seek a guardianship even though the information was learned through the confidential relationship.
In practice
The opinion holds that the lawyer may, with the tribunal's permission, withdraw under Rule 1.16(b) given the client's conduct, subject to the Rule 1.16(d) duties to protect the client on termination. On capacity, it holds Rule 1.14(b)-(c) authorizes protective action (including seeking a guardian) for a client the lawyer reasonably believes has diminished capacity and faces substantial harm, with disclosure under Rule 1.6 limited to what is reasonably necessary. The opinion points the lawyer to the Rule 1.14 comments, noting the position is unavoidably difficult.
Common questions
Q: Can an Illinois lawyer withdraw when a client refuses to sign a settlement she agreed to?
A: Yes, with the court's permission. The opinion holds Rule 1.16(b)(4) and (b)(6) permit withdrawal where the client insists on action the lawyer fundamentally disagrees with or has made the representation unreasonably difficult, subject to seeking the tribunal's leave under Rule 1.16(c).
Q: Can the lawyer ask the court to consider a guardian for the client?
A: Yes. Under Rule 1.14(b), a lawyer who reasonably believes the client has diminished capacity and is at risk of substantial harm and cannot act in her own interest may take protective action, including seeking appointment of a guardian.
Q: Does asking for a guardian violate confidentiality?
A: No, within limits. Rule 1.14(c) impliedly authorizes the lawyer under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interest.
Background and rules framework
The opinion interprets Illinois Rules 1.16 (declining or terminating representation; Model Rule 1.16), 1.14 (client with diminished capacity; Model Rule 1.14), and 1.6 (confidentiality; Model Rule 1.6), reading Rule 1.14(c)'s implied authorization as the bridge that permits limited disclosure otherwise protected by Rule 1.6.
Citations and references
Rules of Professional Conduct:
- Illinois RPC 1.16 (withdrawal) / MR 1.16
- Illinois RPC 1.14 (client with diminished capacity) / MR 1.14
- Illinois RPC 1.6 (confidentiality) / MR 1.6
See also
- ISBA Ethics Op. 20-07: Obligations When a Client Becomes Impaired During the Representation
- ISBA Ethics Op. 13-06: Obligations of a Lawyer Acting as Guardian ad Litem in Adoptions
Source
- Landing page: https://www.isba.org/ethics/opinions/1210
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