102819 NYEO, ETH 1175

• Case Date: October 28, 2019
• Court: New York

ETH 1175 Ethics Opinion 1175 New York Ethics Opinion New York State Bar Association Committee on Professional Ethics October 28, 2019          Topic: Withdrawal of guilty plea; allocation of authority between lawyer and client.          Digest: Once a lawyer has explained the material risks and chances of success of the withdrawal of a previously entered guilty plea to a criminal defendant, the lawyer must follow the decision of the client to withdraw the plea.          Rules: 1.2(a), 1.4, 3.1                    FACTS          1. The inquiring lawyer has been assigned as counsel to a criminal defendant who, while represented by previous counsel, had entered a guilty plea to a criminal charge with an understanding of the sentence to be imposed. On the date set for that sentencing, defendant did not appear and later was re-arrested on two misdemeanor charges. The sentencing was adjourned.          2. On the new date set for sentencing, the defendant discharged his prior attorney and advised the court that he wished to withdraw his prior guilty plea. On that same date, the inquirer was appointed by the court and the case adjourned to allow the inquirer to bring a motion to withdraw defendant's prior guilty plea.          3. The inquirer has obtained a transcript of the plea proceedings and interviewed prior counsel and finds nothing which would support the contention that the plea was not knowingly and voluntarily made. The inquirer is likewise convinced that the evidence would result in a guilty verdict if the matter were taken to trial and that if he withdraws his prior guilty plea he will not be afforded a drug treatment program that was in the previous plea agreement.          QUESTION          4. Is a lawyer required to follow the client's decision to withdraw a guilty plea when the consequences of such withdrawal will result in a more severe sentencing of the defendant and the motion has little chance of success?          DISCUSSION 5. Our jurisdiction is limited to interpreting the N.Y. Rules of Professional Conduct (the “Rules”). It is our understanding...