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Opinion date: Aug. 13, 2003

Ethics issue presented:

What are the lawyer’s obligations to the client and the court when discharged by a client shortly before a scheduled court hearing in a litigated matter?

Facts as presented by Inquirer:

Inquirer represents a client in a litigated matter. A few days before the commencement of an evidentiary hearing, the client informed inquirer by telephone that the inquirer was discharged. Client advised that new counsel had been retained and identified new counsel. Inquirer telephoned new counsel, reported her discharge, and inquired whether new counsel wished to receive the file materials in light of the impending hearing. New counsel advised client that representation had not yet been undertaken for client and that new counsel would get back to Inquirer. New counsel responded to Inquirer the day before the hearing was to commence. Client was with new counsel when new counsel called Inquirer and advised that new counsel was not going to "represent" client, but would attend the evidentiary hearing to "consult" with client.

Inquirer had contacted the offices of the court to inform of his discharge. Inquirer believed that it is unlikely that any continuance would be granted. Inquirer believed that she could properly represent client at the evidentiary proceeding should that be required.

Advice given:

Reference was made to R.P.C. 1.16, which requires a lawyer to withdraw from representation when discharged by the client. However, 1.16(c) states that a lawyer must continue representation when ordered to do so by a tribunal. Since the court had a rule proscribing withdrawal without court approval, the provisions of 1.16(d) required lawyers to take steps "to the extent reasonably practical to protect a client's interest." Under those circumstances, Inquirer was advised to attend the evidentiary proceeding, prepared to proceed on behalf of client, but to inform the presiding judge of the situation, and with the client's consent, to seek a continuance and leave to withdraw. Should that not be granted, at the earliest opportunity where client's interest would not be prejudiced, Inquirer was advised to seek withdrawal. Inquirer stated that concerns regarding unpaid fees or possession of the file were not implicated.

The foregoing is advisory only and is not binding on the Disciplinary Board of the Supreme Court of Pennsylvania nor in court. It carries only such weight as an appropriate reviewing authority may choose to give it.

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