In withdrawal filings, client confidentiality must be guarded, even if it brings risk of denial, new ABA ethics opinion says
Disclosure of client information in support of a withdrawal motion must be narrowly tailored, according to a new ethics opinion from the ABA’s Standing Committee on Ethics and Professional Responsibility.
Published Wednesday, Formal Opinion 519 notes that Model Rule 1.6 of the ABA Model Rules of Professional Conduct protects all information relating to the representation, and Model Rule 1.16 addresses a lawyer’s termination of a representation. Neither rule authorizes lawyers to disclose client information, nor do they “establish an implicit exception to the duty of confidentiality,” according to the opinion.
Lawyers may be able to obtain client consent to withdraw, which will obviate the need to explain the basis for the withdrawal. Also, the client may further give informed consent to disclosures that the lawyer deems to be necessary to make in the withdrawal motion.
Otherwise, if a lawyer has to explain the basis of a withdrawal, they first should use a formulaic reference to “professional considerations” or similar language, according to the opinion.
If the judge requires more information, the attorney should seek “to persuade the court to rule on the motion without requiring the disclosure of confidential client information, asserting all nonfrivolous claims for maintaining confidentiality,” according to the opinion.
If the court still requires more information, according to the opinion, the lawyer should seek permission to provide the necessary information “in camera and ex parte.” Or the lawyer can try to provide the information under seal.
And if the judge denies a motion to withdraw unless more information is provided, the lawyer should remind them of client confidentiality obligations detailed in Model Rule 1.6 and again ask to share relevant details in camera or under seal.
“Ultimately, the lawyer’s paramount duty is to preserve client confidentiality, even at the risk that the tribunal may deny the motion to withdraw,” according to the opinion.
In a few situations when a lawyer moves to withdraw, Model Rule 1.6(b) provides for exceptions to client confidentiality. But these are narrow. They include things such as “to prevent reasonably certain death or substantial bodily harm,” “to prevent the client from committing a crime or fraud,” or “to comply with other law or a court order.”
An ABA press release is here.
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