The Risk Manager, Spring 2013

In Poindexter v. Commonwealth of Kentucky (Ky., No.2011-SC-000275-DG, (12/20/2012)) the Supreme Court considered the case of a defendant left without representation when his lawyer failed to appear at arraignment. The judge held the lawyer in criminal contempt and ordered the lawyer to pay a $250 fine and spend 96 hours in jail probated for two years.

The lawyer appealed on the basis that he had properly withdrawn from representation. The Court disagreed finding that the lawyer had not followed court or professional responsibility rules in withdrawing. He therefore had a duty to appear in court and the trial court had not abused its discretion in finding the lawyer in criminal contempt of court.

The risk management and professional responsibility principle concerned in this case is:

If the matter is before a tribunal, a lawyer may withdraw only with the permission of the tribunal even though good cause for withdrawal exists. Compliance with this requirement typically involves following court rules for filing a motion for withdrawal or substitution of counsel. The court has the discretion to deny a request to withdraw for reasons of judicial economy or in the best interest of the client. If withdrawal is denied, the lawyer must continue the representation with no reduction in responsibilities to the client or diminishment of the client’s interest. (How to Fire a Client, Kentucky Bench & Bar Vol. 65, No. 3, May 2001; available on Lawyers Mutual’s website at Click on Resources, Subject Index, scroll to Bench & Bar Articles, select the May 2001 issue, and select the article title.

It is not difficult to have sympathy for the lawyer in this case (see the dissent). However, it is crucial to note this decision is consistent with a stream of Supreme Court rulings holding Kentucky lawyers to the highest professional responsibility standards. In Poindexter the client apparently was given little time to find a new lawyer and thereby left unrepresented in court. These facts vividly show that the risk of an unjustified act of withdrawal is that a client will be considered abandoned by the lawyer. A lawyer’s worst nightmare is to have a client and not know it. That is exactly the situation when a lawyer mistakenly thinks a withdrawal is effective. The lawyer is then exposed to liability for a claim for all damages proximately caused by the unjustified withdrawal, bar discipline, and contempt findings. When withdrawing from representation it pays to know what you are doing.