If a competent client instructs the lawyer to dismiss her own lawsuit and the lawyer thinks she is acting against her interests, what can the lawyer do?

Plain-English summary

The lawyer represented a brain-injured client in a personal injury matter. The client instructed the lawyer to dismiss the lawsuit, and the lawyer believed she wanted to do so because of paranoia resulting from the brain injury. The committee was of the opinion that where a client has instructed the lawyer to dismiss a lawsuit and the lawyer believes she is acting against her best interests, the lawyer's options are limited.

The committee noted two facts the inquiry had already established: the lawyer had attempted to exert influence to get the client independent help and to follow the lawyer's advice, without success, and the lawyer had concluded the client was not so incapacitated as to permit the lawyer to obtain the appointment of a guardian ad litem. Given those facts, the committee was of the opinion that the lawyer must follow the client's instructions, and that if the lawyer did not feel able to do so, the lawyer must withdraw from further representation.

The committee was of the opinion that withdrawal should be done in a way that fully protects the client's interests. After appropriate notice to the client, the lawyer should request an in camera meeting with a judge to explain the problem and make a record for withdrawal. That meeting should not be in the presence of the opposing lawyer, and, if necessary, the lawyer should seek a protective order so that whatever record is made is not part of the file.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. The client-with-diminished-capacity rule was then numbered RPC 1.13 (it corresponds to Model Rule 1.14), and the rule allocating decisions about the objectives of representation was RPC 1.2(a); both were later amended. Treat this page as historical context, not current guidance.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 lawyer refuse to dismiss a lawsuit the client wants dropped because the lawyer thinks it is a mistake?

A: Per the opinion, no, once the predicate facts are present: where the client is not incapacitated enough for a guardian ad litem and the lawyer's efforts to dissuade her have failed, the committee said the lawyer must follow the client's instructions or withdraw.

Q: When can the lawyer pursue a guardian ad litem instead of following the client?

A: The committee treated that route as foreclosed here because the lawyer had concluded the client was not so incapacitated as to permit the appointment of a guardian ad litem. The opinion does not set out the standard for incapacity; it took the lawyer's conclusion as given.

Q: If the lawyer cannot carry out the instruction, how should the lawyer withdraw?

A: The committee was of the opinion that the lawyer must withdraw in a way that fully protects the client's interests: after notice to the client, request an in camera meeting with a judge to make a record for withdrawal, held outside the opposing lawyer's presence, with a protective order if necessary so the record is not part of the file.

Background and rules framework

The opinion applies two Washington rules. RPC 1.2(a) (then governing the objectives of representation, corresponding to Model Rule 1.2) is the source of the client's authority to decide to dismiss the suit. RPC 1.13 (then the rule for a client under a disability, corresponding to Model Rule 1.14) frames the diminished-capacity question and the guardian ad litem option the committee treated as unavailable on these facts. The committee resolved the tension between the lawyer's view of the client's interests and the client's instruction by requiring the lawyer either to follow the instruction or to withdraw with safeguards for the client.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.2(a) (objectives of representation), corresponding to Model Rule 1.2.
• Washington RPC 1.13 (client under a disability), corresponding to Model Rule 1.14.

See also

• WSBA Ethics Op. 1011: protective action when a client under a disability threatens suicide
• WSBA Ethics Op. 960: a parent directing a lawyer to stop representing a minor child
• WSBA Ethics Op. 966: a contingent-fee client who disappears after paying advance costs
• ABA Formal Op. 96-404: a client under a disability

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=180

Original opinion text

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

Advisory Opinion: 1069
Year Issued: 1987
RPC(s): RPC 1.2(a); 1.13
Subject: Objectives of representation; client acting against best interests

The lawyer represented a brain-injured client in a personal injury matter. The client told the lawyer she wanted to dismiss the lawsuit; the lawyer believed the client wished to do so based on paranoia resulting from the brain injury. The Committee was of the opinion that where your client has instructed you to dismiss a lawsuit, and you believe she is acting against her best interests, your options are limited. You have apparently attempted to exert your influence to get independent help and follow your advice, which has not been successful. You have also concluded that she is not so incapacitated as to permit you to obtain the appointment of a guardian ad litem. Therefore, the Committee was of the opinion that you must follow your client's instructions and that if you do not feel you can do so, you must withdraw from further representation of her. The Committee was of the opinion that this should be done in such a way as to fully protect your client's interests, and that after appropriate notice to your client, you should request an in camera meeting with a judge to explain the problem and make a record for withdrawal. This meeting should not be in the presence of the opposing lawyer, and, if necessary, you should seek a protective order so that whatever record is made is not a part of the file.