Opinion Number: 2022-05 – Rule Number: 4-1.7; 4-1.16
Question: Attorney represents Client in a dissolution of marriage. After several months of negotiation with Opposing Counsel, Attorney believes an agreement has been reached regarding matters of custody of minor children and pets, sale of the marital home, division of property, support, etc. Client is unhappy with the proposed agreement and files a disciplinary complaint against Attorney without telling Attorney. Attorney continues to represent Client, and Client never expresses dissatisfaction with Attorney, just with the proposed agreement. A few weeks later, Attorney receives a letter from the Office of Chief Disciplinary Counsel (OCDC) asking for Attorney to respond to Client’s complaint. A hearing is scheduled in two weeks on Client’s dissolution matter. Attorney is upset that Client filed a complaint with OCDC, but never expressed dissatisfaction with Attorney directly. Attorney asks if Attorney must withdraw from representing client due to the filing of the complaint with OCDC.
Answer: Just because Client filed a disciplinary complaint against Attorney with the Office of Chief Disciplinary Counsel, Attorney is not necessarily required to withdraw from representing Client in this matter. Attorney must continue to communicate directly with Client regarding the representation. See Missouri Informal Opinion 20050059. Sometimes the lawyer-client relationship may continue despite the filing of a disciplinary complaint, depending on the nature and severity of Client’s allegations of misconduct and the overall health of the lawyer-client relationship. Attorney should assess if a material limitation conflict exists pursuant to Rule 4-1.7(a)(2) based on Attorney’s personal interest in refuting the allegations of misconduct. In making such assessment, Attorney should consider if there is a significant risk as to Attorney’s ability to consider, recommend, and carry out an appropriate course of action for Client. Rule 4-1.7, Comment [8]. Attorney must also assess if Attorney’s own personal interest in refuting the misconduct allegations will have an adverse effect on the representation of Client. Rule 4-1.7, Comment [9]. If Attorney determines Attorney has a material limitation conflict based on Attorney’s personal interest, Attorney may not continue with the representation and must withdraw pursuant to Rule 4-1.16(a)(1), provide notice or seek permission of the tribunal pursuant to Rule 4-1.16(c), and assist Client upon withdrawal pursuant to Rule 4-1.16(d). If Attorney has a reasonable belief that Attorney may proceed with representing Client without it impacting the professional judgment of Attorney, Attorney may proceed with the representation.