Legal Ethics Opinion #1558

Withdrawal of Representation: Continued Representation of
Criminal Defendant Client Who Has Alleged Counsel Has Pressured
Him Into Guilty Plea

You have presented a hypothetical situation in which Attorney
represents a criminal defendant ("Client").  In the multi-
defendant case in federal court (which applies Virginia ethical
rules), all defendants, including Client, plead guilty.  You
indicate that Client subsequently tells the Probation Office that
he is innocent and that Attorney pressured him into a plea of
guilty.  Subsequently, Probation Office prepares a presentence
report detailing Client's assertions.  Client is the only
defendant represented by Attorney.

You have asked the committee to opine, under the facts of the
inquiry, (l) whether Attorney should seek leave to withdraw
before sentencing; and (2) whether Attorney should, if requested
before withdrawal, file a motion to withdraw a plea of guilty.

The appropriate and controlling disciplinary rules relative to
your inquiry are DR 2-l08(C), which states that counsel of record
shall not withdraw except by leave of court after notice to the
client of the time and place of a motion for leave to withdraw. 
In any other matter, a lawyer shall continue representation,
notwithstanding good cause for terminating the representation,
when ordered to do so by a tribunal.  Although DR 5-l0l(A),
precluding a lawyer's acceptance of employment if his
professional judgment on behalf of the client may be affected by
his own personal interests, would be applicable at the outset of
representation, it is inapposite to the circumstances you
describe which involve an already-existing attorney-client

As to whether Attorney should seek to withdraw before sentencing,
the committee is of the opinion that the instant case is one in
which the self-interest of the lawyer is in conflict with that of
the client, since Client now claims innocence and that Attorney
pressured him to enter a guilty plea.  The committee is of the
view that Client's statements to Probation Office have created a
conflict between Client's interest in defending against the
criminal charge and Attorney's interest in his reputation, which
conflict might give rise to a claim that Attorney did not
zealously pursue Client's case, i.e., a claim of ineffective
assistance of counsel.  See LEO #ll22.  In these circumstances,
the committee believes that full disclosure to and consent from
Client would not obviate the effect of Client's and Attorney's
differences.  Therefore, the committee opines that Attorney
should seek leave to withdraw under the provisions of DR 2-l08(C)
before Client's sentencing.  The committee cautions, however,
that should the court deny Attorney's motion for withdrawal, he
would be bound to continue the representation.  See LEO #514.

As to whether Attorney should file a motion to withdraw the
guilty plea, the committee believes it is incumbent upon the
attorney to take all steps necessary to avoid prejudice to the
client's rights until such time as the Court may grant counsel's
motion to withdraw.  

Committee Opinion
October 20, 1993