QUESTION: Attorney has a medical condition that will prevent Attorney from conducting upcoming depositions in a pending matter, attending a pre-trial hearing, and participating in the trial on the scheduled date. Must Attorney withdraw from the representation?

ANSWER: Rule 4-1.16, Declining or Terminating Representation, requires a lawyer to withdraw from the representation if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. Rule 4-1.16(a). In determining whether withdrawal is required, Attorney should consider such factors as the expected duration of Attorney’s condition, the impact of a requested continuance on the interests of the client, and the possibility of involving other lawyers in Attorney’s firm or associating with counsel outside Attorney’s firm. Attorney must communicate with the client about the limitations imposed by Attorney’s medical condition and explain matters to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. See Rule 4-1.4. If, in consultation with the client, it is determined that reasonable steps can be taken to prevent Attorney’s physical condition from materially impairing the representation, Attorney is not required to withdraw. If the client agrees to the association of additional counsel in the matter, Attorney may not divide the fee with a lawyer not in Attorney’s firm unless the requirements of Rule 4-1.5(e) are met: the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; the client agrees to the association and the agreement is confirmed in writing; and the total fee is reasonable. See Rule 4-1.0(b) (defining “confirmed in writing”); see also Rule 4-1.5(a) (factors to consider in determining the reasonableness of a fee).

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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