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What Can You Disclose in Moving to Withdraw as Counsel?

By Charles S. Fax, Litigation News Associate Editor

A colleague recently called me with a seemingly simple question. Approaching trial, she was in an irreconcilable conflict with her client over several matters, including fees. She had to withdraw from the case. How much should she tell the judge in making her motion to withdraw? My flippant answer—"as little as necessary"—simply restated her question—"how much is necessary?" There is no clear answer.


The analysis starts at the intersection of ABA Model Rules 1.6 (confidentiality of information) and 1.16 (declining or terminating representation) as codified and interpreted in your state. The pertinent provisions of Rule 1.6, which generally protects the confidentiality of "information relating to the representation of a client" (whether privileged or not), are Rules 1.6(b)(6) and (c). Rule 1.6(b)(6) authorizes a lawyer to "reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary . . . to comply with other law or a court order." Rule 1.6(c), however, enjoins a lawyer to "make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client." Rule 1.16(c) says in pertinent part that "[a] lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation."


These provisions, on their face, are not reconcilable, nor do they answer my colleague's question. Comment 3 to Rule 1.16 observes that "[t]he court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient." But what if the judge is not satisfied with that vague explanation and demands more detailed reasons, especially if trial is approaching and a switch in counsel could cause delay? While Rule 1.6(b)(6) authorizes counsel to comply with the court's order, how can she do so without traversing Rule 1.6(c)? At a minimum, she could appeal the trial court's order. Must she do so? Alternatively, were she to provide her detailed explanation in camera, would that obviate the problem?


At least one court apparently thinks so. In In re Gonzalez, the District of Columbia Court of Appeals directed D.C. bar counsel to issue an informal admonition to counsel who had disclosed, in his motion to withdraw from representation, confidential documents detailing the conflict with his client that buttressed the motion. In so ruling, the court quoted with approval the analysis of the bar hearing committee that had considered the matter in the first instance: "'[T]here is no reason those documents could not have been provided to the [Circuit] Court in camera, so that the [Circuit Court] could be satisfied that the motion had a factual foundation, without harm to the client's interests.'" (Brackets in original.)


That solution was squarely rejected in California, however, where the Standing Committee on Professional Responsibility and Conduct, in Formal Opinion No. 2015-192, concluded that "[i]n attempting to demonstrate to the court her need to withdraw, an attorney may not disclose confidential communication with the client, either in open court or in camera." Inasmuch as ABA Model Rule 8.5(b) and D.C. Rule 8.5 provide that a D.C. lawyer trying a case in California would be subject to the ethical requirements of both jurisdictions, the apparent D.C. solution offers no comfort.


The California opinion is also instructive for its failure to answer the question posed. In its concluding paragraphs, the committee wrote: "If, notwithstanding all efforts by the attorney to prevent the court from entering an order compelling disclosure [of confidential information as the grounds for withdrawal of representation]—including by requesting a stay of the order to allow time to file a writ petition—the court nonetheless orders disclosure, this Committee cannot categorically opine on how the attorney must choose between her competing duties to maintain the client's confidences and to obey the court's order."


In other words, if you do not have the good fortune to be before an understanding judge, you may be relegated to the solace, if any, found in the pages of Joseph Heller's masterpiece Catch-22. Lawyers must evaluate on a case-by-case basis how much they can disclose to the court within the conflicting confines of the rules quoted above and the judge's reaction to their proffer, and then risk denial of the motion, or a grievance from the client, if they say too little or too much.


 

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