When withdrawing over a client's failure to pay, what do you say to protect client confidentiality?

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Lawyers seeking to withdraw in civil cases for client nonpayment of funds should take precautions in order to ensure that they do not violate the duty of confidentiality, according to ABA Formal Opinion 476 (PDF).

ABA Model Rule 1.16(b)(5) allows attorneys to withdraw when a client “substantially fails to fulfill an obligation to the lawyer.” However, ABA Model Rule 1.6 provides for a broad duty of confidentiality that must be considered when a lawyer moves for withdrawal.

The opinion notes that “when in doubt, a lawyer should err on the side of nondisclosure.” This means that ordinarily a lawyer should file a motion to withdraw based on “professional considerations.” Such a motion would not reveal any confidential client information.

However, a court may require more information, as trial courts have broad discretion when ruling on motions to withdraw. A judge could ask the lawyer whether the motion is brought in good faith and without a dilatory purpose. The opinion explains that “[a] judge should not require the disclosure of confidential client information without considering whether such information is necessary to reach a sound decision on the motion.”

If the judge needs more information to rule on the motion to withdrawal, the attorney should first try to persuade the court to rule on the motion without the attorney revealing any confidential client information. If that does not work, the attorney should “submit 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.”

The opinion emphasizes that the process of filing for and considering a motion to withdrawal “requires cooperation between lawyers and judges.” The opinion also notes that it does not cover motions to withdraw in criminal cases, which have “additional and unique issues.”

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