NYSBA Committee on Professional Ethics – Withdrawal of guilty plea: Opinion 1175

New York State Bar Association Committee on Professional Ethics

Withdrawal of guilty plea

Allocation of authority between attorney and client

Ethics Opinion 1175

Background: The inquiring lawyer is assigned 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 sentenced to be imposed. On the date set for that sentencing, the defendant did not appear and he was rearrested on two misdemeanor charges. At the date for sentencing, the defendant discharged his prior attorney and asked the inquiring attorney to submit a motion to withdraw the defendant’s prior guilty plea. After reviewing the necessary transcripts, the inquiring attorney does not believe the defendant will be successful at trial and there is nothing to suggest the guilty plea was not knowingly and voluntarily made. The inquiring attorney asks if he must follow the client’s direction when withdrawal will likely result in a more severe sentencing.

Opinion: The Committee concluded that, 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.