When a client in litigation insists on drafting court papers, appearing without the lawyer, and capping the lawyer's hours in ways that block the lawyer's independent judgment, what are the lawyer's duties and when must the lawyer withdraw?

Plain-English summary

The committee addressed a civil litigant who wanted to take over the conduct of a case: the client wanted to draft the documents (including those filed with the court) and have the lawyer sign them on the client's behalf, to attend and handle an upcoming hearing himself rather than the lawyer, to keep the lawyer as attorney of record for any later developments, and to cap the lawyer's work at one hour. The committee was asked what duties the lawyer owed the client and the court and when the lawyer should withdraw.

On duties to the client, the committee set out the lawyer's obligation to provide competent representation (Rule 16-101), to abide by the client's decisions on objectives while consulting on means (Rule 16-102(A), (C), (E)), and to exercise independent professional judgment and render candid advice (Rule 16-201). It noted a conflict can arise under Rule 16-107(B) when the client directs means that conflict with the lawyer's duties to the court or the rules, and that under Rule 16-116 the lawyer must decline or terminate a representation that would violate the rules and may withdraw when the client makes the work unreasonably difficult. It recognized the client's inherent right to discharge the lawyer at any time, while noting the lawyer should counsel the client about the consequences, and observed that the procedural aspects of a case are generally within the lawyer's control while the client retains the final say over the ultimate resolution; the client's control over resolution does not relieve the lawyer of the duty of independent judgment, and the lawyer may not act without the client's informed consent.

On duties to the court, the committee noted the obligations to expedite litigation and advance only meritorious contentions (Rules 16-302 and 16-301) and the certification required when signing pleadings (Rule 1-011), and that once a lawyer enters an appearance the lawyer may not withdraw without the court's written consent (Rule 1-089 and local rules). It concluded the lawyer is obligated to ensure each document presented to the court is well-founded and accurate, a duty that cannot be delegated to the client, and should not permit the client to appear pro se unless the court has consented to the lawyer's withdrawal. Most importantly, the lawyer should advise the client that the lawyer may not ethically continue if the client limits the representation so as to prevent the independent exercise of professional judgment; the client should be counseled, preferably in writing, and if the client persists in refusing to let the lawyer appear and exercise judgment over the filings, the lawyer should move the court for permission to withdraw. The client may then retain the lawyer on mutually acceptable terms or discharge the lawyer; if neither, and the conditions prevent the lawyer from fulfilling professional duties, the lawyer should withdraw, in each case seeking the court's order permitting withdrawal.

Currency note

This opinion was issued in 1995, under the New Mexico Rules of Professional Conduct effective January 1, 1987 (SCRA 1986, Rules 16-101, 16-102, 16-107, 16-201, 16-116, 16-301, and 16-302) and the Rules of Civil Procedure then in effect. It predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes), which added the limited-scope-representation provisions of Rule 16-102. 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 client take over drafting court documents and have the lawyer just sign them?

A: No. The committee concluded the lawyer's obligation to ensure each document presented to the court is well-founded and accurate cannot be delegated to the client.

Q: Can the lawyer let the client appear pro se while staying attorney of record?

A: The committee concluded the lawyer should not permit the client to appear pro se unless, upon motion, the court has consented to the lawyer's withdrawal.

Q: What should the lawyer do if the client's limits block independent judgment?

A: The committee concluded the lawyer should counsel the client, preferably in writing, about the consequences, and if the client persists, move the court for permission to withdraw.

Q: Can the lawyer simply stop work if the client caps the hours and the court has not allowed withdrawal?

A: No. The committee concluded that until the court grants permission to withdraw, the lawyer remains under a continuing obligation to appear and protect the client's interests, even if a motion to withdraw is denied.

Background and rules framework

The opinion read the competence, scope, conflict, advisor, and withdrawal rules together (Rules 16-101, 16-102, 16-107, 16-201, and 16-116, corresponding to Model Rules 1.1, 1.2, 1.7, 2.1, and 1.16) with the duties to the tribunal to advance meritorious contentions and expedite litigation (Rules 16-301 and 16-302, Model Rules 3.1 and 3.2) and the procedural rules on signing pleadings and on withdrawal of counsel (Rules 1-011 and 1-089). It framed the client's control over objectives and ultimate resolution as coexisting with the lawyer's non-delegable control over the accuracy of filings and the exercise of independent judgment.

Citations and references

Rules of Professional Conduct:

• Rule 16-101 (competence); Rule 16-102(A), (C), (E) (scope; objectives and means); Rule 16-107(B) (conflict; materially limited representation); Rule 16-201 (advisor; independent judgment); Rule 16-116 (declining or terminating representation); Rule 16-301 (meritorious claims); Rule 16-302 (expediting litigation)

Rules of Civil Procedure:

• Rule 1-011 (signing of pleadings); Rule 1-089 (withdrawal of counsel requires court consent)

Cases:

• Olsen & Brown v. City of Englewood, 889 P.2d 673 (Colo. 1995): client's discharge of counsel is an inherent right; quantum meruit
• Graves v. P.J. Taggares Co., 616 P.2d 1223 (Wash. 1980): attorney lacks authority to bind client to compromises absent special authority

See also

• NM Ethics Op. 1995-2: Attorney's Fees on Termination of Contingent Fee Agreements

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1993-95-96/1995-1.pdf

Original opinion text

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

Advisory Opinion 1995-1
QUESTION OF DISAGREEMENTS BETWEEN LAWYERS AND THEIR CLIENTS
OVER COURSES OF ACTION TO BE TAKEN
The Advisory Opinions Committee of the State Bar of New Mexico has been asked for advice concerning a lawyer's
ethical course of conduct in circumstances where the lawyer's client seeks control of a litigated matter such that the
lawyer's independent exercise of judgment and duty to the tribunal would be substantially impaired.
The matter at issue involves a somewhat complex dispute that has been in civil litigation for some time. The court is
located some distance from the lawyer's city, such that additional time is necessitated by court appearances. A
preliminary resolution was reached in mediation. However, the client was not satisfied with the written memorandum of
agreement generated following the mediation. The client wants to draft the documents, including those which are to be
filed with the court, and wishes to have the lawyer sign on the client's behalf. A hearing has been scheduled by opposing
counsel to bring the client back to the table and the client has instructed the lawyer that the client, not the lawyer, will
attend and handle matters at the hearing. At the same time, the client wants the lawyer to continue as the attorney of
record and to represent the client if the matter develops further. Pending such further developments, however, the client
has instructed the lawyer to expend no more than one hour of time on the client's case.
Under the situation presented, what are the lawyer's duties to the client and to the court and under what circumstances
should the lawyer withdraw from the representation?
THE LAWYER'S DUTIES TO THE CLIENT
The lawyer's obligation is to provide the client with competent representation, and to use his or her professional skill and
legal knowledge for the benefit of the client. SCRA 1986, 16-101 (Repl. Pamp. 1991). The lawyer shall abide by the
client's decision concerning the objectives of the representation and shall consult with the client concerning the means by
which those objectives are to be accomplished. SCRA 16-102(A). The objectives of the representation may be limited,
after consultation with the client. SCRA 16-102(C). The lawyer shall also consult with the client concerning limitations
which may be imposed on the lawyer's conduct by applicable law or by the Rules of Professional Conduct. SCRA 16102(E).
A conflict of interest may arise between the lawyer and the client where the client directs the lawyer to accomplish the
representation through means which conflict with the lawyer's duties to the court or under the Rules of Professional
Conduct. See SCRA 16-107(B). The lawyer is also bound to exercise his or her independent professional judgment
concerning the representation and to render candid advice to the client. SCRA 16-201.
Moreover, the lawyer shall decline or terminate representation where the representation will result in a violation of the
Rules of Professional Conduct or other law and may terminate representation where it has been rendered unreasonably
difficult by the client. SCRA 16-116(A) & (B). As discussed in the Comment to Rule 16-116, the lawyer should not accept
the representation unless it can be performed competently and promptly to completion, without conflict of interest. If the
client demands conduct in violation of the Rules, the ordinary solution is for the lawyer to withdraw. At the same time, it is
the right of the client to discharge the lawyer at any time. SCRA 16-116(A)(3). However, the lawyer should counsel the
client concerning the consequences of discharging the lawyer. A client's discharge of counsel is an exercise of an inherent
right. Olsen & Brown v. City of Englewood, 889 P.2d 673, 676 (Colo. 1995). But see Mass v. McClenahan, No. 93-CIV3290, 1995 WL 272551, 67 Fair Empl. Prac. Cas. (BNA) 1597 (S.D.N.Y. May 8, 1995). (While it is a worthwhile goal to
protect a client's right to discharge his or her lawyer at any time, where there was clear evidence that termination was for
prohibited discriminatory reason, lawyer's claim of discrimination was upheld.)
The relationship between the lawyer and the client rests on the agreement between them. See ABA/BNA Lawyers'
Manual on Professional Conduct 31:302. The relationship between the lawyer and the client is contractual, resulting from
the mutual agreement and understanding of the parties. Delta Equip. & Const. Co., 186 So.2d 454, 458 (La. Ct. App.
1966). However, in general, because of the lawyer's superior knowledge and status as a member of the bar, the
procedural aspects of the case are within the lawyer's control, while the client retains final say over the ultimate resolution
of the matter. ABA/BNA Lawyers' Manual on Professional Conduct 31:302. The client's control over the resolution does
not absolve the lawyer of his or her duty to exercise independent judgment. Id. At the same time, the lawyer may not

proceed without the client's informed consent. Id. at 31:306; Graves v. P.J. Taggares Co., 616 P.2d 1223, 1227 (Wash.
1980) (attorney without authority to bind client to stipulations or compromises in the conduct of litigation absent special
authority granted by client).
THE LAWYER'S DUTIES TO THE COURT
The lawyer is obliged to make reasonable effort to expedite litigation and to advance only meritorious claims or
contentions. See SCRA 16-302,-301. Consistent with the dictates of Rule 16-301, the Rules of Civil Procedure require
that the lawyer signing a pleading or other paper certify that there is good ground to support it and that it is not interposed
for delay. SCRA 1986, 1-011 (Repl. Pamp. 1992).
Once the lawyer has entered his or her appearance in a case, the lawyer may not withdraw without the written consent of
the court. SCRA, 1-089. Local rules of court also require that withdrawal be approved by the court, pursuant to Rule 1089. See, e.g., LR1-210(B), LR2-117(C); see also D.N.M. LR-CV. 83.3(e). Thus, until an attorney of record has been
relieved by the court, he or she is under a continuing obligation to attend and appear on behalf of the client.
Under the facts of the questions presented to the Committee, the client's wish to draft documents and to appear in court
without the lawyer are at odds with the lawyer's obligation to represent the client before the court and to continue to
assure that the documents presented to the court are appropriate under the rules.
The instant tension arises because the attorney must represent the wishes of the client and allow the client, after
consultation, to determine what is in the client's best interests, and to act accordingly, within the limits of the law. Orr v.
Knowles, 337 N.W.2d 699, 702 (Neb. 1983). The lawyer's duty to consult with and to advise the client may be met by
writing to explain the consequences of the actions to the client. See Ethics Advisory Panel of the Rhode Island Supreme
Court, Opinion 90-3 (January 18, 1990), ABA\BNA Manual 901:7807.
In a litigated matter, the lawyer should continue the representation until the court has granted permission to withdraw.
Standing Committee on Professional Responsibility and Conduct of the State Bar of California, Opinion 1994-134
(undated) ABA/BNA Manual 1001:1603. Further, if the lawyer's motion to withdraw is denied by the court, the lawyer will
be obliged to disregard the client's direction to cease work and to follow the court's orders to take reasonable steps to
continue to protect the client's interests. Ethics Advisory Panel of the Rhode Island Supreme Court, Opinion 92-49 (July
23, 1992), ABA/BNA Manual 1001:7812-13. However, the lawyer may be entitled to receive compensation for services
rendered on a quantum meruit basis. See Olsen & Brown v. City of Englewood, 889 P.2d 673, 675 (Colo. 1995);
Committee on Professional Ethics of the Illinois State Bar Association, Opinion 92-22, (May 12, 1993), ABA/BNA Manual
1001:3012.
Under the circumstances presented to the Committee, there are several obligations which the lawyer must observe and
follow. The lawyer is under an obligation to assure that each of the documents to be presented to the court is well founded
and accurate. This duty cannot be delegated to the client. The lawyer should not permit the client to appear pro se unless,
upon motion, the court has consented to the lawyer's withdrawal. Note that the client, as a pro se party may be held to the
same standards as if represented by an attorney. See Nwachuku v. Yellow Cab Co., 895 P. 2d 741, 743 (Okla. Ct. App.
1995).
Most importantly, the lawyer should advise the client that the lawyer may not ethically continue to represent the client if
the client wishes to limit the scope of the representation such that the lawyer is prohibited from the independent exercise
of his or her professional judgment and, absent discharge and withdrawal from the case, precluded from representing the
client before the court in which the lawyer has entered an appearance on behalf of the client. The client should be
counseled, preferably in writing, concerning the ramifications of the client's decision. If, after consultation, the client
persists in refusing to permit the lawyer to appear and to exercise the necessary judgment and control over the pleading
or other papers, the lawyer should, upon proper motion, request permission of the court to withdraw from the case.
It is the opinion of the Committee that the lawyer should first provide the client with the information necessary to ensure
that the client understands the lawyer's obligations to represent the client within the strictures of the Rules of Professional
Conduct and the applicable rules of court. The client may then choose to retain the lawyer under mutually acceptable
terms, or discharge the lawyer. If the client does not choose to discharge the lawyer, but determines that the
representation should continue under conditions which do not permit the lawyer to fulfill the lawyer's professional duties,

the lawyer should withdraw. In the case of discharge and of withdrawal, the lawyer must also seek an appropriate order of
the court permitting the withdrawal.