Can a lawyer who has entered an appearance skip a hearing because the client chooses to proceed pro se?

Plain-English summary

A judge asked whether an attorney who has entered an appearance is excused from appearing at a hearing where the client proposes to represent himself. In the hypothetical, the client appears without counsel and states that, by agreement with his attorney, he will present the matter himself. The Commission was asked whether the attorney's failure either to appear or to obtain the court's permission to withdraw in advance was unethical.

The Commission divided. Some members thought nothing in the Bar Rules requires an attorney to be present at every stage if the client prefers to represent himself: because the lawyer acts as the client's agent, the client can terminate the relationship at any time (Rule 3.5(b)(2)(iv)) and may likewise limit the attorney's role as advocate, provided that does not violate the Bar Rules or rules of court, citing a New York City Bar opinion and ABA Informal Op. 1414. Other members thought an attorney who fails to attend a scheduled hearing has in effect withdrawn even on the client's instruction: Rule 3.5(a)(1) bars withdrawal without the tribunal's consent where required, and M.R.C.P. Rule 89(a) provides that once an appearance is entered, counsel may not withdraw without leave of court, so they would read Rule 3.5(a)(1) as requiring leave before failing to appear even where the client insists on appearing pro se.

Evenly divided on the interpretation of Rule 3.5(a)(1), the Commission concluded the question is ultimately one for the court to resolve. Whether a failure to attend, even with the client's consent, is a "withdrawal" within the rule depends on the facts and involves a legal interpretation of "withdrawal" in M.R.C.P. Rule 89(a) beyond the Commission's authority. Because a court might construe the failure to appear as a withdrawal, the Commission advised that counsel would be well advised to notify the court and opposing counsel in advance of any hearing that the client will appear pro se where counsel has been instructed not to appear.

Currency note

This opinion was issued in 1989, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer who has appeared skip a hearing because the client wants to proceed pro se?

A: The opinion reached no firm answer. The Commission split on whether that is a "withdrawal" requiring the court's leave and treated the question as one for the court.

Q: Why might skipping the hearing count as a withdrawal?

A: Some members read Rule 3.5(a)(1) and M.R.C.P. Rule 89(a) to mean that, once an appearance is entered, failing to attend is effectively a withdrawal that requires leave of court, even on the client's instruction.

Q: What did the Commission advise counsel to do?

A: The opinion advised that counsel notify the court and opposing counsel in advance of the hearing that the client will appear pro se, because a court might otherwise construe the absence as an improper withdrawal.

Background and rules framework

The opinion interprets Maine Bar Rule 3.5(a)(1) (no withdrawal without the tribunal's consent where required by its rules) and Rule 3.5(b)(2)(iv) (the client's right to discharge counsel), read against M.R.C.P. Rule 89(a) (leave of court to withdraw after appearance). These correspond to ABA Model Rule 1.16 (declining or terminating representation, including the tribunal-permission requirement) and Model Rule 1.2 (scope of representation).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 (declining or terminating representation); Model Rule 1.2 (scope of representation)
• Maine Bar Rule 3.5(a)(1), 3.5(b)(2)(iv); M.R.C.P. Rule 89(a)

Other opinions cited:

• New York City Bar Ass'n Op. 1987-2; ABA Informal Op. 1414 (1978)

See also

• Maine Ethics Op. 120: Delivering the Client's File
• Maine Ethics Op. 100: Threatening a Grievance to Influence a Malpractice Settlement

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91490

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: April 15, 1989

Facts

A judge has requested an advisory opinion as to whether an attorney who has entered an appearance on behalf of a client is excused from appearing at a hearing at which the client proposes to represent himself. In the hypothetical case presented, the client appears at the hearing without counsel and states that, by agreement with his attorney, he will present the matter on his own. The Commission has been asked whether the attorney's failure to either appear or to secure the court's permission to withdraw as counsel in advance of the hearing constitutes unethical conduct.

Opinion

Some members of the Commission are of the opinion that nothing in the Bar Rules requires that an attorney be present at every stage of the litigation if a client prefers to represent himself. They suggest that since the lawyer acts as his client's agent, the client can terminate the relationship at any time. See Rule 3.5(b)(2)(iv). It would follow that the client can also limit the attorney's role as advocate if he chooses provided the restrictions do not result in any violation of the Bar Rules or the rules of court. See, e.g., New York City Bar Ass'n Op. 1987-2; ABA Inf. Op. 1414 (1978).

Other members of the Commission have suggested that an attorney who fails to attend a scheduled court hearing has in effect, withdrawn from the representation even though his client has directed him not to appear. Bar Rule 3.5(a)(1) states that an attorney may not withdraw from employment without consent of the tribunal where permission is required by the rules of the tribunal. M.R.C.P. Rule 89(a) provides that, once an attorney has entered his appearance, he is not free to withdraw without leave of court. These members would therefore read Rule 3.5(a)(1) as obliging the attorney to obtain leave of court before failing to appear for a court hearing even though his client insists on appearing pro se

Although the Commission was evenly divided on the proper interpretation of Rule 3.5(a)(1) under these circumstances, the question is, in the final analysis, one which the court itself must resolve. Whether an attorney's failure to attend a court hearing even with the consent of his client would constitute a "withdrawal" within the meaning of the rule would depend on the facts of the case presented. Moreover, the application of the rule to the facts would involve a legal interpretation of the term "withdrawal" in M.R.C.P. Rule 89(a) which is beyond the authority of this Commission to give. Since, however, the court in a given case might construe the attorney's failure to appear as a "withdrawal," counsel would be well advised to notify the court and opposing counsel in advance of the hearing that his client will be appearing pro se in any case in which he has been instructed not to appear.