An attorney may withdraw from a criminal representation when the client decides to argue on appeal that the attorney was ineffective, if the client wants him to and the attorney reasonably believes that continued representation would be adverse.
Defendant is convicted at trial.
Defendant informs attorney that he wishes to raise ineffective assistance of counsel on direct appeal of the conviction and asks that attorney be removed from the case. Thus, even if the lawyer has good cause for terminating the representation, the final decision rests with the court and when a court orders the lawyer to continue the representation, the lawyer must do so or risk contempt. It is this Committee's opinion that if an attorney reasonably believes that his or her work has been deficient in the trial and reasonably believes that such deficiency affected the outcome of the trial, the attorney has an obligation under the South Dakota Rules of Professional Conduct to explain this situation to the client. The attorney should also advise the client regarding the legalities of raising an ineffective assistance of counsel issue on direct appeal. If the client wishes that the attorney be removed from the case, or if the attorney reasonably believes that the continued representation will be adversely affected by the attorney's own interests, the court should be notified of the client's wishes that the attorney be removed, or of the attorney's motion to withdraw.