By Daniel J. Siegel
It’s a moment lawyers dread. They have filed a Petition to Withdraw, and a hearing is scheduled. The last thing they want to do at the hearing, however, is publicly reveal the reason for their withdrawal. It may be that they weren’t paid, or that the client lied about material facts, or that they determined the case had no merit. In every instance, the goal is not to disclose more than necessary when the presiding judge asks.
When a lawyer seeks to withdraw from representing a client, the process is governed by strict ethical rules that prioritize the confidentiality of client information. The Rules of Professional Conduct, particularly Rules 1.6 and 1.16, outline the circumstances under which a lawyer may or must withdraw from representation and the limitations on disclosing information to support such a motion. To assist lawyers and judges in understanding the withdrawal process, the American Bar Association Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 519, which provides detailed guidance and emphasizes the paramount importance of client confidentiality and the steps lawyers should take to comply with ethical obligations when seeking withdrawal.
Although the Opinion focuses on the Model Rules of Professional Conduct, the lessons apply to all lawyers, regardless of the jurisdictions in which they practice. Here are some of the highlights of the Opinion.
The Duty of Confidentiality Under Rule 1.6
Rule 1.6(a) of the ABA Model Rules establishes a broad duty of confidentiality, prohibiting lawyers from revealing “information relating to the representation of a client” unless the client provides informed consent or an explicit exception applies. This duty extends to all information related to the representation, regardless of its source, and is not limited to communications protected by attorney-client privilege. The rule underscores the foundational principle of trust in the attorney-client relationship, ensuring that clients can communicate openly with their lawyers without fear of disclosure.
When a lawyer seeks to withdraw from representation, this duty of confidentiality remains intact. Even if withdrawal is mandatory under Rule 1.16(a), the lawyer cannot disclose information related to the representation unless an exception to Rule 1.6 applies or the client consents. This restriction can create challenges for lawyers, particularly when courts require detailed explanations to justify withdrawal.
Grounds for Withdrawal Under Rule 1.16
Rule 1.16 outlines the circumstances under which a lawyer may or must withdraw from representation. Mandatory withdrawal is required under Rule 1.16(a) in situations such as when continuing representation would violate the Rules of Professional Conduct or other law, when the lawyer’s physical or mental condition materially impairs their ability to represent the client, or when the client discharges the lawyer. Permissive withdrawal under Rule 1.16(b) is allowed when the client persists in criminal or fraudulent conduct, fails to fulfill obligations to the lawyer, or the representation imposes an unreasonable financial burden on the lawyer.
However, Rule 1.16(c) requires lawyers to comply with applicable laws and obtain the court’s permission before terminating representation in judicial proceedings. This requirement can create tension between the lawyer’s duty to withdraw and their obligation to maintain client confidentiality.
Balancing Confidentiality and Court Requirements
Courts vary in their expectations for withdrawal motions. Some courts may accept motions with minimal information, especially if the client consents or another lawyer is available to take over the representation. Others may require detailed explanations to justify withdrawal. This can put lawyers in a difficult position, as providing such details may necessitate disclosing confidential information.
ABA Formal Opinion 519 emphasizes that lawyers must prioritize client confidentiality, even if it means risking the denial of a withdrawal motion. The Opinion advises a multi-step approach to seeking withdrawal while minimizing the disclosure of confidential information:
Initial Motion: Begin with a motion that cites only “professional considerations” or similar language to justify the withdrawal. This avoids disclosing any confidential information.
Responding to Court Requests: If the court requests further information, the lawyer should assert all non-frivolous claims to maintain confidentiality, consistent with Rule 1.6(a). The lawyer should also seek to persuade the court to rule on the motion without requiring disclosure of confidential information.
Court-Ordered Disclosure: If the court orders the lawyer to disclose information, Rule 1.6(b)(6) permits disclosure to the extent reasonably necessary to comply with the order. The lawyer should request that such disclosures be made in camera or under seal to protect the client’s interests.
Denial of Motion Without Disclosure: If the court indicates that the motion will be denied unless the lawyer provides more information, the lawyer must remind the court of their duty to maintain confidentiality under Rule 1.6. The lawyer should request that any required disclosure be limited and protected by appropriate measures.
Exceptions to the Duty of Confidentiality
While Rule 1.6 generally prohibits disclosure of information related to the representation, it provides specific exceptions under Rule 1.6(b). These exceptions allow disclosure to prevent certain harms, comply with court orders, or address conflicts of interest. For example:
Court Orders: Rule 1.6(b)(6) permits disclosure to comply with a court order, but only to the extent reasonably necessary. Lawyers should exhaust all reasonable efforts to avoid disclosure before complying with such orders.
Nonpayment of Fees: Rule 1.6(b)(5) allows disclosure of information reasonably necessary to establish a claim or defense in a controversy between the lawyer and the client, such as when seeking withdrawal due to nonpayment of fees.
Other Rules: Rules of Professional Conduct 3.3, 1.13, and 1.14 may permit or require disclosure in specific circumstances, such as when a lawyer must remediate false evidence, report organizational misconduct, or take protective action for a client with decision-making limitations.
In some cases, a client may provide informed consent to the lawyer’s disclosure of information needed to support a withdrawal motion. Informed consent requires the lawyer to explain the material risks and reasonably available alternatives to the client. For example, if a client discharges the lawyer, the lawyer may be authorized to disclose this information in the withdrawal motion. Obtaining informed consent can help the lawyer avoid broader disclosures that may harm the client’s interests.
Personal Information Not Related to the Representation
In certain situations, a lawyer may justify a withdrawal motion by providing personal information that is not related to the representation and therefore not protected by Rule 1.6. For instance, if a lawyer seeks to withdraw because of a physical or mental condition that materially impairs their ability to represent the client, they can provide a detailed explanation without violating the duty of confidentiality.
Courts’ Approaches to Withdrawal Motions
Judicial decisions reveal varying approaches to withdrawal motions. Some courts accept minimal disclosures, while others require detailed explanations. In some cases, courts have disciplined lawyers for making unnecessary or overly broad disclosures of confidential information. For example, in In re Gonzalez, a decision from the District of Columbia, the Opinion states that a lawyer was disciplined for publicly filing a motion to withdraw that included allegations of the client’s misconduct, such as lying and missing appointments.
To address these challenges, some courts allow lawyers to submit information in camera or under seal to justify withdrawal motions. This approach helps protect client confidentiality while providing the court with the necessary information to make a decision.
Practical Steps for Lawyers Seeking Withdrawal
As stated previously, ABA Formal Opinion 519 emphasizes the importance of a multi-step approach to seeking withdrawal:
Start with General Language: Use formulaic references such as “professional considerations” or “irreconcilable differences” in the initial motion to avoid disclosing confidential information.
Assert Confidentiality: If the court requests further information, assert all non-frivolous claims to maintain confidentiality and protect the attorney-client privilege.
Minimize Disclosure: If ordered to disclose information, limit the disclosure to what is reasonably necessary and request protective measures, such as in camera or under seal submissions.
Remind the Court: If the court does not order the lawyer to disclose but states that the motion to withdraw will be denied unless the lawyer provides more information, the lawyer remains bound by the duty of confidentiality and should remind the judge that, absent an order from the court, the lawyer is obligated under Rule 1.6 to maintain the confidentiality of the information. In doing so, the lawyer should also request that, if the court does order the lawyer to disclose, the court require the lawyer to disclose only so much information protected by Rule 1.6 as is necessary and allow the lawyer to make those disclosures in camera or submitted under seal so as to minimize harm to the client’s interests.
ABA Formal Opinion 519 serves as an important reminder that a lawyer’s duty of confidentiality does not evaporate simply because the lawyer seeks to withdraw from a representation. Rules 1.6 and 1.16 work together to ensure that client confidences remain protected even when a lawyer has compelling reasons – mandatory or permissive – to step aside. As the Opinion makes clear, lawyers must resist the understandable temptation to “explain too much” when faced with judicial pressure for details. Instead, they are ethically obligated to begin with general, non-revealing language, to assert confidentiality when pressed, and to disclose protected information only when a court order requires it, and then only to the extent reasonably necessary and with appropriate safeguards.
For practicing lawyers, the lesson is both practical and cautionary. Withdrawal motions should be approached strategically, with planning and a clear understanding of the ethical boundaries governing disclosure. Lawyers must remember that protecting client confidences may, at times, come at a cost, including the possible denial of a motion to withdraw – but that cost is built into the professional obligations of the role. By following the framework outlined in Formal Opinion 519, lawyers can navigate withdrawal proceedings in a manner that honors their ethical duties, protects their clients’ interests, and minimizes the risk of disciplinary consequences.
Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel and Past Chair of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, regularly represents injured workers in claims before all Pennsylvania courts. He also provides ethical guidance and Disciplinary Board representation for attorneys and law firms. He is the editor of Fee Agreements in Pennsylvania (6th Edition) and the author of Leaving a Law Practice: Practical and Ethical Issues for Lawyers and Law Firms (Second Edition), published by the Pennsylvania Bar Institute. He can be reached at dan@danieljsiegel.com.
