Legal Ethics Opinion #1530
Termination of Representation - Zealous Representation: Duty of
Representation of Criminal Client During Pendency of Motion to
Withdraw When Attorney Believes Further Motions Would be
Frivolous
You have presented a hypothetical situation in which an attorney
was appointed to represent an indigent on a rape charge. The
case was tried to a jury and defended on a consent theory. The
defendant was convicted. The defendant instructed the attorney
to file an appeal and to take the appeals as far as possible, to
any court in the land. You state that in the attorney's opinion,
the sole issue at trial was the credibility of the complaining
witness.
You state that there were additional charges pending against the
defendant and that the attorney represented the defendant on two
of the additional charges which were tried together. The
attorney was then "fired" by the defendant and allowed by the
court to withdraw. The attorney then filed a motion to withdraw
as counsel in the Virginia Court of Appeals, but the motion was
denied.
You state that in accordance with Anders v. California, 386 U.S.
738 (1967), the attorney filed a petition for appeal, stating
that the appeal was filed at the direction of the defendant and
against the advice of counsel. The petition for appeal was then
denied by the Court of Appeals.
You state that after receiving the order from the Court of
Appeals and researching his duty to file further appeals, the
attorney determined that he could not file a Motion to Rehear in
the Court of Appeals due to a lack of good faith belief in the
motion. The attorney then drafted the motion and mailed it to
the defendant with an explanatory letter as to the procedure to
be followed. The attorney then drafted and filed a motion to
withdraw and closed the file.
You have asked the committee to opine whether, under the facts of
the inquiry, the attorney has a duty to file further appeals for
the defendant.
The appropriate and controlling Disciplinary Rules related to
your inquiry are DRs 2-108 which outlines the procedures for
withdrawal and termination of representation; 7-101(A) which
requires a lawyer to seek the lawful objectives of his client
through reasonably available means permitted by law and the
disciplinary rules; and 7-102(A)(2) which proscribes a lawyer
from knowingly advancing a claim or defense that is unwarranted
under existing law, except that he may advance such claim or
defense if it can be supported by a good faith argument for an
extension, modification, or reversal of existing law.
The committee has consistently opined that the general rule
requires a court-appointed attorney to meet his duty to file
post-trial motions on behalf of his client until he is relieved,
replaced, or all post-trial remedies are either barred or
exhausted. In addition, however, the committee recognizes two
exceptions to this general rule: (1) the attorney has no duty to
file a post-trial motion that is unwarranted by existing law and
which cannot be supported by a good faith argument for
modification of the existing law; and (2) it is not improper for
an attorney to file a motion for leave to withdraw if that
withdrawal can be effected without material prejudice to the
client. See LEO #1005.
In the hypothetical facts you present, the committee is without
sufficient information to determine if the attorney's withdrawal
may be effected without material prejudice to the defendant. In
any case, the committee recognizes that that is a decision to be
made by the appellate court. See DR 2-108(C); Rules of the
Virginia Supreme Court, Rule 1:5.
You state, however, that the attorney lacks a good faith belief
in the Motion to Rehear. The committee is of the opinion, then,
that although ordinarily the attorney would have a duty to
proceed with further post-trial remedies, that duty has been
displaced by his ethical duty not to file unwarranted or
frivolous motions. Thus, the committee opines that the attorney
no longer has a duty to file further post-trial motions.
Committee Opinion
May 11, 1993
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