Can a court-appointed lawyer withdraw and tell the court that the indigent client lied about being too poor to hire counsel?

Plain-English summary

A lawyer assigned to represent an indigent client learned the client had the means to retain private counsel, having misrepresented financial eligibility to obtain assigned counsel. The lawyer asked whether he could withdraw when doing so would require disclosing client confidences or secrets. The committee held that the client's continuing acceptance of assigned counsel under false pretenses can amount to a fraud on the tribunal once the client refuses to correct the misrepresentation after the lawyer remonstrates (DR 7-102(B)(1); the Code's scienter-based definition of "fraud"). That fraud supplies a basis for permissive withdrawal under DR 2-110(C). The committee declined to decide whether the conduct was criminal, noting that is a question of law outside its jurisdiction.

Having a basis to withdraw does not by itself permit withdrawal, the committee explained. If the tribunal requires the lawyer to obtain permission and to state reasons, DR 4-101's protection of confidences and secrets is triggered. DR 7-102(B)(1) itself carries an explicit exception relieving the lawyer of the duty to report a client's fraud "when the information is protected as a confidence or secret." So the lawyer's ability to state grounds turns entirely on DR 4-101. The information about the client's assets is a "confidence" if given confidentially to obtain legal advice in the assigned matter, and otherwise may be a "secret."

The committee concluded that assigned counsel is likely barred from disclosing the grounds in the motion papers to the extent they are a confidence or secret, but is not barred from filing a motion for leave to withdraw without stating those grounds (citing N.Y. State 592). If the court then orders disclosure, the lawyer may reveal a "secret" under the DR 4-101(C) exception for disclosure "required by court order." If the lawyer believes the information is a privileged "confidence," the committee said the lawyer may have an ethical obligation to appeal the order rather than comply (N.Y. State 528). The committee added that, because secrets may ultimately have to be disclosed, the lawyer would be well advised to tell the client before filing so the client can decide whether to discharge counsel; and if the court denies the motion for lack of stated grounds, the lawyer must continue the representation.

Currency note

This opinion was issued in 1996, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 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 assigned counsel withdraw after learning the client lied about being indigent?

A: The opinion concluded the client's continuing fraud on the tribunal gives a basis for permissive withdrawal under DR 2-110(C), but whether the lawyer can actually withdraw depends on what the tribunal requires the lawyer to disclose.

Q: Can the lawyer tell the court why he is withdrawing?

A: The opinion concluded no, not in the motion papers, to the extent the reasons are a client confidence or secret. The lawyer may file a motion that does not state the protected grounds.

Q: What if the court orders the lawyer to give the reasons?

A: The opinion concluded the lawyer may disclose a "secret" because DR 4-101(C) permits disclosure required by court order; but if the information is a privileged "confidence," the lawyer may have an ethical duty to appeal the order rather than comply.

Background and rules framework

The opinion interpreted DR 4-101 (confidences and secrets, including the DR 4-101(C) exceptions), DR 2-110 (withdrawal), and DR 7-102(B)(1) (revealing a client's fraud, with its exception for protected confidences and secrets) of New York's former Code. The Model Rule analogues are Rule 1.6 (confidentiality), Rule 1.16 (withdrawal), and Rule 3.3 (candor toward the tribunal). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 1.16 (declining or terminating representation)
• MR 3.3 (candor toward the tribunal)
• NY DR 4-101; DR 2-110; DR 7-102(B)(1); EC 5-1; EC 7-1; EC 7-6

Cases:

• Hoopes v. Carota, 74 N.Y.2d 716 (1989), scope of the attorney-client privilege
• Matter of Balter v. Regan, 63 N.Y.2d 630 (1984), duty to follow a court order

Other opinions cited:

• N.Y. State 592 (1988): moving to withdraw without disclosing secrets
• N.Y. State 528 (1981): appealing a disclosure order rather than revealing a confidence
• Oregon State 1991-34: "theft of free legal services"

See also

• NY State Bar Op. 700: Confidentiality and fraud on the tribunal
• NY State Bar Op. 1057: Disclosing client information on a motion to withdraw
• NY State Bar Op. 831: Disclosing client fraud on a tribunal before April 2009

Source

• Landing page: https://nysba.org/opinion-681/