My client's only surviving supporting expert witness needs travel expenses my client refuses to pay, and my client won't even discuss it with me. Can I withdraw from the case?

Plain-English summary

An attorney representing a plaintiff in a medical malpractice suit asked the panel about withdrawing from a case he no longer believed was meritorious. He explained that he had obtained supporting opinions from two experts that the defendant's conduct deviated from the acceptable standard of care, but before trial one of those experts died, and a third expert he contacted opined that the defendant's conduct did not deviate from the standard of care. The attorney stated that his client refused to pay the expenses needed to bring the one remaining favorable expert witness to Rhode Island and refused to contact him to resolve the matter, leading the attorney to believe the case was not meritorious without expert testimony.

The panel stated it could not comment on the merits of the underlying case. Based on the attorney's representations, however, it took the position that he could properly move to withdraw under DR 2-110(C)(1)(d), which the opinion quotes as allowing a lawyer to seek permission to withdraw from a matter pending before a tribunal (where DR 2-110(B) does not independently require withdrawal) if the client's conduct "renders it unreasonably difficult for the lawyer to carry out his employment effectively."

Currency note

This opinion was issued in 1988, before the Rhode Island Supreme Court's adoption of the 2007 revisions to the Rules of Professional Conduct, and it applies the ABA Model Code of Professional Responsibility's Disciplinary Rules then in effect. Subsequent rule amendments or later opinions may have changed the analysis, including Rhode Island's current withdrawal rule. Treat this page as historical context, not current guidance.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: My client won't pay for the only expert who still supports our case and won't discuss it with me. Can I withdraw?

A: On facts like these, the opinion holds withdrawal is proper under DR 2-110(C)(1)(d), because the client's refusal to fund the expert and to communicate rendered it unreasonably difficult for the attorney to carry out the representation effectively.

Q: Will the panel tell me whether my case actually has merit before I decide to withdraw?

A: No. The opinion states the panel cannot comment on the merits of a case; its holding addresses only the propriety of withdrawal based on the attorney's own representations.

Background and rules framework

The opinion applies DR 2-110(C)(1)(d) of the ABA Model Code of Professional Responsibility, then in force in Rhode Island, which permits a lawyer to seek permission to withdraw from representation pending before a tribunal where the client's conduct makes effective representation unreasonably difficult, referencing DR 2-110(B) as the separate mandatory-withdrawal provision that did not apply on these facts.

Citations and references

Rules of Professional Conduct:

• RI DR 2-110(C)(1)(d) (permissive withdrawal where client conduct renders effective representation unreasonably difficult)
• RI DR 2-110(B) (mandatory withdrawal, referenced as inapplicable on these facts)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2088-06.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION 88-6, REQUEST #30
Issued May 13, 1988

An attorney seeks Panel advice concerning the propriety of withdrawing as attorney for the plaintiff from a case which he does not believe to be meritorious.

The attorney advises the Panel that the matter in question is a medical malpractice suit. He indicates that as part of his preparation he had obtained opinions from two experts indicating that the defendant's conduct deviated from the acceptable standard of care. He further indicates that before the case came to trial one of these experts died, and that a third expert contacted opined that the defendant's actions did not deviate from the acceptable standard of care. He advises the Panel that his client refuses to pay the expenses necessary to bring the one available expert witness to Rhode Island and that the client has refused to contact him to resolve the matter. He states that he feels that his client's case is not meritorious without an expert witness.

The Panel cannot comment on the merits of a case. Based on the representations in the attorney's letter, however, the Panel takes the position that he may properly move to withdraw pursuant to DR 2-110(C)(1)(d). This disciplinary rule provides, in pertinent part that

"[i]f DR 2-110(B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless (1) His client: . . . (d) . . . renders it unreasonably difficult for the lawyer to carry out his employment effectively."

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.