Opinion #96. Nonappearance of Attorney at Hearing upon Request or Consent Of Client

Issued by the Professional Ethics Commission

Date Issued: April 15, 1989

Facts

A judge has requested an advisory opinion as to whether an attorney who has entered an appearance on behalf of a client is excused from appearing at a hearing at which the client proposes to represent himself. In the hypothetical case presented, the client appears at the hearing without counsel and states that, by agreement with his attorney, he will present the matter on his own. The Commission has been asked whether the attorney’s failure to either appear or to secure the court’s permission to withdraw as counsel in advance of the hearing constitutes unethical conduct.

Opinion

Some members of the Commission are of the opinion that nothing in the Bar Rules requires that an attorney be present at every stage of the litigation if a client prefers to represent himself. They suggest that since the lawyer acts as his client’s agent, the client can terminate the relationship at any time. See Rule 3.5(b)(2)(iv). It would follow that the client can also limit the attorney’s role as advocate if he chooses provided the restrictions do not result in any violation of the Bar Rules or the rules of court. See, e.g., New York City Bar Ass’n Op. 1987‑2; ABA Inf. Op. 1414 (1978).

Other members of the Commission have suggested that an attorney who fails to attend a scheduled court hearing has in effect, withdrawn from the representation even though his client has directed him not to appear. Bar Rule 3.5(a)(1) states that an attorney may not withdraw from employment without consent of the tribunal where permission is required by the rules of the tribunal. M.R.C.P. Rule 89(a) provides that, once an attorney has entered his appearance, he is not free to withdraw without leave of court. These members would therefore read Rule 3.5(a)(1) as obliging the attorney to obtain leave of court before failing to appear for a court hearing even though his client insists on appearing pro se

Although the Commission was evenly divided on the proper interpretation of Rule 3.5(a)(1) under these circumstances, the question is, in the final analysis, one which the court itself must resolve. Whether an attorney’s failure to attend a court hearing even with the consent of his client would constitute a “withdrawal” within the meaning of the rule would depend on the facts of the case presented. Moreover, the application of the rule to the facts would involve a legal interpretation of the term “withdrawal” in M.R.C.P. Rule 89(a) which is beyond the authority of this Commission to give. Since, however, the court in a given case might construe the attorney’s failure to appear as a “withdrawal,” counsel would be well advised to notify the court and opposing counsel in advance of the hearing that his client will be appearing pro se in any case in which he has been instructed not to appear.


Enduring Ethics Opinion