Ezel / Ethics Opinions / NYSBA
NYSBA 2020-10-08

Can a lawyer withdraw from a case because they fear contracting COVID-19 at a required in-person court appearance?

Short answer: Yes, with the tribunal's permission. The opinion concludes that a lawyer may seek to withdraw where fear of contracting COVID-19 at in-person appearances makes it difficult to represent the client effectively, but must obtain the Immigration Court's permission and protect the client on withdrawal.
Currency note: this opinion is from 2020
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1203: Withdrawal Based on COVID-19 Health Risk From In-Person Appearances

Short answer: The opinion concludes that a lawyer may withdraw, with the Immigration Court's permission, based on fear of contracting COVID-19 at in-person appearances where that fear makes it difficult to carry out the representation effectively.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

A New York lawyer representing a client in Immigration Court faces a scheduled in-person appearance during the pandemic, with no COVID-19 safety protocols yet established. The lawyer is concerned the appearance presents a substantial health risk to the lawyer and the lawyer's family, and asks whether that fear is a permissible ground to withdraw.

The opinion answers that withdrawal is permitted under Rule 1.16(b), which allows withdrawal when the lawyer's mental or physical condition renders it difficult, not impossible, to carry out the representation effectively. The committee reasons that fear of contracting COVID-19 could subtly undermine effective representation in several ways: the lawyer might avoid in-person time needed to understand the case, consent prematurely to a disposition, or rush a hearing by not calling witnesses or waiving cross-examination to limit exposure. Any such influence meets the standard for permissive withdrawal. The committee notes withdrawal would also be permitted under Rule 1.16(c)(1) (no material adverse effect on the client) or Rule 1.16(c)(10) (the client knowingly and freely assents).

Because the client is before a tribunal, the opinion stresses that Rule 1.16(d) requires the tribunal's permission to withdraw where the tribunal's rules require it. The Immigration Court is a "tribunal" under Rule 1.0(w), and its Practice Manual requires a motion with the court's consent when the client has not obtained successor counsel. If the court grants withdrawal, Rule 1.16(e) requires the lawyer to take steps to avoid foreseeable prejudice to the client, including reasonable notice, time to find new counsel, delivery of the client's papers and property, and prompt refund of any unearned advance fee.

In practice

Under this opinion, a New York lawyer who fears contracting COVID-19 at a required in-person appearance may move to withdraw where that fear makes effective representation difficult, but must obtain the tribunal's permission when the tribunal's rules require it (as the Immigration Court's do when the client lacks successor counsel). The opinion holds that, under Rule 1.16, the standard for permissive withdrawal is met by influences short of impossibility, and that on withdrawal the lawyer must take the Rule 1.16(e) steps to protect the client, including notice, time to retain new counsel, return of papers and property, and refund of any unearned fee.

Common questions

Q: Is fear of COVID-19 a valid reason to withdraw from a case?

A: Per the opinion, yes, where the fear makes it difficult to carry out the representation effectively; Rule 1.16(b) permits withdrawal when the lawyer's physical or mental condition renders effective representation difficult, not impossible.

Q: Does the lawyer need the court's permission to withdraw?

A: Per the opinion, yes, when the tribunal's rules require it. Rule 1.16(d) bars withdrawal from a matter before a tribunal without its permission where required, and the Immigration Court requires a motion with its consent when the client has no successor counsel.

Q: What must the lawyer do for the client if withdrawal is granted?

A: Per the opinion, Rule 1.16(e) requires reasonable notice, time to find new counsel, delivery of the client's papers and property, and prompt refund of any unearned advance fee.

Background and rules framework

The opinion interprets New York Rule 1.16 (declining or terminating representation), specifically subsections (b), (c)(1), (c)(10), (d), and (e), together with the Rule 1.0(w) definition of "tribunal." These correspond to ABA Model Rule 1.16 and the Model Rules' terminology.

Citations and references

Rules of Professional Conduct:

  • New York Rules of Professional Conduct 1.16(b), 1.16(c)(1), 1.16(c)(10), 1.16(d), 1.16(e); 1.0(w)
  • ABA Model Rule 1.16 (analogue)

Other authorities cited:

  • Immigration Court Practice Manual (version 7/2/2020), Section 2.3(i) (change in representation)

See also

Source