In early October 2020, the New York State Bar Association issued an ethics opinion advising that an immigration attorney may withdraw from a case due to fear of contracting coronavirus.
The attorney cited inadequate safety measures at the courthouse prompting health concerns for himself and his family.
The opinion notes that New York Rule of Professional Conduct 1.16(b) sets forth the standard of “difficult” to carry out representation, not “impossible.” The New York Rule corresponds to similar wording in ABA Model Rule 1.16(a)(2) permitting withdrawal where a lawyer’s mental condition “materially impairs” representation. The NYSBA concluded that the rule provides a “flexible standard.” The opinion reasoned that fear of in-person contact could “subtly, but powerfully undermine” effective representation. The opinion stipulates that the attorney will need the court’s permission to withdraw and must provide adequate notice to the client.
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