ABA Formal Opinion: How to Withdraw Without Spilling Too Many Beans of Confidential Information

A lawyer who seeks to withdraw from the representation of a client involved in litigation typically must seek permission of the presiding tribunal to do so. Indeed, Rule 1.16, governing withdrawal and termination of representation, provides that “a lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation.” See La. Rules of Prof’l Cond. R. 1.16(c). To obtain such permission, a lawyer sometimes must disclose the reasons why the court should permit withdrawal notwithstanding the ongoing litigation. Such a disclosure can involve confidential information, such as that a client has violated the law, that the client has failed to pay the lawyer’s invoices, or that the lawyer would have a conflict of interest in continuing the representation. Rule 1.6(b) permits such disclosures to the extent “reasonably necessary” to comply with law or to respond to “allegations” concerning the lawyer’s representation of the client. See id. R. 1.6(b)(5-6). However, are there limits as to what a lawyer can and cannot disclose in attempting to withdraw?

Yes, according to an ABA formal ethics opinion issued on December 19, 2016. See ABA Std’g Comm. on Ethics & Prof’l Resp., Formal Op. 476 (Dec. 19, 2016) (“Confidentiality Issues when Moving to Withdraw for Nonpayment of Fees in Civil Litigation”). To balance the client’s interest in confidentiality with the tribunal’s interest in making an informed decision on a motion to withdraw, the formal opinion advises a lawyer seeking to withdraw as counsel of record to do the following:

  1. First, the lawyer should submit a motion to withdraw that discloses no client information other than, perhaps, a reference to the need to withdraw for “professional considerations.” In addition, the lawyer may disclose the procedural steps taken prior to filing the motion, such as providing notice to the client. The lawyer may also update the court on the procedural status of the litigation. Id. at 9.
  2. If the court insists on additional information, the lawyer should then “seek[] to persuade the court to rule on the motion without requiring the disclosure of confidential client information,” and assert “all non-frivolous claims of confidentiality and privilege.” Id.
  3. If the court still insists on receiving additional information before ruling on the motion to withdraw, then the lawyer should, pursuant to Rule 1.6(b)(5), provide “only such information as is reasonably necessary to satisfy the needs of the court and preferably by whatever restricted means of submission, such as in camera review under seal, or such other procedures designated to minimize disclosure as the court determines is appropriate.” Id.
  4. Finally, if the court “expressly orders” the lawyer to make full, public disclosure of the otherwise confidential information, then Rule 1.6(b)(6) would permit the disclosure to allow the lawyer “to comply with a court order.” Id.