Can court-appointed counsel withdraw when an involuntarily committed client insists on appealing a decision the lawyer thinks lacks merit?

Plain-English summary

An attorney was court-appointed to represent a client who had been involuntarily committed under Virginia's Involuntary Commitment Statute. The client's spouse, parents, and two psychiatrists all testified that the client is mentally ill, but the client is articulate, intelligent, college-educated, and alert, understands the mechanics of the appeal, and is capable of deciding whether to appeal. The client disagreed with the circuit court's decision and insisted on appeal even though the attorney believed the appeal lacked merit.

The committee declined to opine on the existing law of Virginia relating to involuntary commitments. On the ethics question, it opined that it is not improper for the attorney to file a motion with the appropriate court requesting leave to withdraw under DR 2-108(C) if the existing law supports the decision rendered by the circuit court and if the attorney has properly apprised the client of his rights to an appeal. It added that, should the motion to withdraw be denied, the attorney has a duty to prosecute the appeal, citing DR 2-107(A)(2) and DR 2-108(C) and Ethical Considerations 2-31, 2-33, and 2-34. The committee note records that current Rule 1.14 provides guidance to lawyers representing clients under a disability.

Currency note

This opinion was issued in 1987, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note points to current Rule 1.14 on clients with diminished capacity. 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 Treat this page as historical context, not current guidance.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 appointed counsel withdraw when the client insists on a meritless appeal?

A: Under this 1987 opinion, counsel may move for leave to withdraw under DR 2-108(C) if existing law supports the lower court's decision and the client has been advised of his appeal rights.

Q: What happens if the court denies the motion to withdraw?

A: The committee opined that if leave to withdraw is denied, the attorney has a duty to prosecute the appeal.

Q: Did the committee decide the merits of the involuntary-commitment law?

A: No. The committee expressly declined to opine on the existing law of Virginia relating to involuntary commitments.

Background and rules framework

The opinion interpreted former Virginia DR 2-108(C) (withdrawal with leave of court where required) and DR 2-107(A)(2) (a lawyer's duties on declining or continuing employment), with Ethical Considerations 2-31, 2-33, and 2-34. These correspond to ABA Model Rule 1.16 on declining or terminating representation. The committee note maps the diminished-capacity dimension onto current Virginia Rule 1.14, the counterpart of ABA Model Rule 1.14.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 2-108(C) (withdrawal requiring leave of court)
• Former Virginia DR 2-107(A)(2); EC 2-31, 2-33, 2-34 (declining or continuing employment)
• Virginia Rule 1.14 / ABA Model Rule 1.14 (client with diminished capacity)
• ABA Model Rule 1.16 (declining or terminating representation)

Statutes:

• Va. Code § 37.1-67.3 (Involuntary Commitment Statute, 1950 Code)

See also

• VA LEO 1816: A Suicidal Capital Client Refusing a Defense
• VA LEO 1769: Guardianship Petition Adverse to a Current Client
• VA LEO 1332: Law-Firm Dissolution and File Release on Withdrawal

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0908.pdf

Original opinion text

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

Committee Opinion
April 1, 1987
LEGAL ETHICS OPINION 908

ATTORNEY-CLIENT - WITHDRAWING
AS COUNSEL.

An attorney was court appointed to represent a client involuntarily committed under the Involuntary Commitment Statute Section 37.1-67.3 of the 1950 Code of Virginia. The client's spouse, parents and two psychiatrists all testified that the client is mentally ill. The client, however, is articulate, intelligent, college educated and alert, understands the mechanics of the appeal and is capable of making a decision as to whether or not to appeal the case. The client disagrees with the circuit court's decision and insists upon appeal even though the attorney is of the opinion that the appeal lacks merit. The committee declines to opine as to the existing law of Virginia relating to involuntary commitments. It is not improper for the attorney to file a motion with the appropriate court requesting leave to withdraw under DR:2-108(C) if the existing law supports the decision rendered by the circuit court and if the attorney has properly apprised the client of his rights to an appeal. Should the motion to withdraw be denied, the attorney has a duty to prosecute the appeal. [DR:2-107(A)(2), DR:2-108(C); EC:2-31, EC:2-33, EC:2-34] Committee Opinion April 1, 1987

Legal Ethics Committee Notes. – Rule 1.14 provides guidance to lawyers representing clients under a disability.