Can a lawyer agree to represent a criminal defendant for arraignment only and then withdraw?

Plain-English summary

A union legal services plan retains a lawyer to represent union members in criminal matters for arraignment only, after which the member must obtain other counsel or seek a court-appointed or legal aid lawyer. Occasionally a court disregards the plan's terms and orders the plan's lawyer to continue past arraignment, even if the member cannot pay. The committee addresses two questions: is the limited representation permissible, and may the lawyer withdraw after arraignment.

On the first question, the committee applies Rule 1.2(c), which allows a lawyer to limit the scope of a representation if the limitation is reasonable, the client gives informed consent, and necessary notice is given to the tribunal or opposing counsel. Drawing on N.Y. State 604 (1989), it holds that arraignment-only representation is ethical if three conditions are met: informed consent after disclosure of the consequences (including the possible need to promptly retain new counsel), a scope broad enough to permit competent service (the "reasonable under the circumstances" requirement), and no prejudice to the administration of justice under Rule 8.4(d). It treats notice to the tribunal as "necessary" only if a court rule requires it, which is a legal question it does not decide.

On the second question, the committee distinguishes N.Y. State 719 (1999) and 805 (2007), which barred advance-consent withdrawal provisions resting on grounds outside the withdrawal rule (such as nonpayment). Here, by contrast, arraignment is a "discreet stage" and the lawyer has completed what the client expected, so advance informed consent to withdraw after arraignment is permissible under Rule 1.16(c)(10). But Rule 1.16(d) overrides that: if a tribunal's permission to withdraw is required, the lawyer may not withdraw without it, and if ordered to continue, must do so notwithstanding good cause, even if the client cannot pay. The committee observes that the Appellate Division rules in all four departments generally require counsel to continue once an appearance is entered, so permission to withdraw is likely required. Finally, even when a court permits withdrawal, Rule 1.16(e) requires the lawyer to take reasonably practicable steps to avoid foreseeable prejudice to the client.

In practice

Under the New York rules as they stood at the time of the opinion, a lawyer may agree to an arraignment-only criminal representation if the client gives informed consent, the scope is reasonable, and the limitation does not prejudice the administration of justice. The opinion holds that advance consent to withdraw after a discrete stage like arraignment is permissible, but that Rule 1.16(d) requires the lawyer to continue if a court's permission to withdraw is required and the court denies it (or orders continuation), regardless of the client's ability to pay; on withdrawal the lawyer must still act under Rule 1.16(e) to avoid foreseeable prejudice. The committee does not interpret the Appellate Division withdrawal rules, treating that as a legal question.

Common questions

Q: Can a lawyer take a criminal case for arraignment only?

A: Yes. The opinion holds that arraignment-only representation is permissible under Rule 1.2(c) if the client gives informed consent, the scope is reasonable enough for competent service, and the limitation is not prejudicial to the administration of justice.

Q: Can the lawyer rely on advance consent to withdraw after arraignment?

A: Generally yes for a discrete stage. The opinion distinguishes earlier opinions that barred advance-consent withdrawals on grounds like nonpayment, holding that arraignment is a discrete stage for which advance informed consent to withdraw is valid.

Q: What if the court refuses to let the lawyer withdraw?

A: The lawyer must continue. The opinion holds Rule 1.16(d) requires the lawyer to keep representing the client when a tribunal's permission is required and denied, or when the court orders continuation, even if the client cannot pay.

Background and rules framework

The opinion applies Rule 1.2(c) (limited-scope representation), Rule 8.4(d) (no conduct prejudicial to the administration of justice), and Rule 1.16(c), (d), and (e) (withdrawal, advance consent, court-permission requirements, and steps to protect the client). These correspond to Model Rules 1.2(c), 8.4(d), and 1.16. The analysis builds on N.Y. State 604, 719, and 805.

Citations and references

Rules of Professional Conduct:

• New York Rule 1.2(c) (limiting the scope of representation); Model Rule 1.2(c)
• New York Rule 1.16(c), (d), (e) (withdrawal, court permission, protecting the client); Model Rule 1.16
• New York Rule 8.4(d) (conduct prejudicial to the administration of justice); Model Rule 8.4(d)

Other opinions cited:

• N.Y. State 604 (1989): limiting representation to a discrete stage; three conditions
• N.Y. State 719 (1999) and 805 (2007): limits on advance-consent withdrawal provisions
• N.Y. County Lawyers 742 (2010): the Rule 1.2(c) notice clause in the ghostwriting context

See also

• NY State Bar Op. 858: Conditioning in-house employment on a confidentiality agreement
• NY State Bar Op. 855: Referral to a spouse's litigation financing company

Source

• Landing page: https://nysba.org/ethics-opinion-856/