ABA Offers Blueprint for Withdrawing Due to Nonpayment

By Samson Habte

A new ABA ethics opinion offers tips on how lawyers can avoid violating their duty of confidentiality when moving to withdraw from a matter based on a client’s failure to pay fees (ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 476, 12/19/16).

The Dec. 19 opinion notes that judges often demand an explanation when a lawyer moves to withdraw from a case. The ABA ethics panel said such demands can create a “tension between a lawyer’s obligation to provide the court with sufficient facts to rule on [the] motion and the lawyer’s duty of confidentiality.”

But lawyers can take measures to balance “the competing rights and responsibilities” that withdrawal motions implicate, the committee said.

The committee stressed that its advice was limited to “the context of a motion to withdraw in a civil case based on a client’s failure to pay a lawyer’s fees.” According to the opinion, a lawyer in that scenario should do three things:

  • 1. Initially file a motion that provides “no confidential client information apart from a reference to ‘professional considerations’ or the like";
  • 2. If pressed for more information, try “to persuade the court to rule on the motion without requiring the disclosure of confidential client information, asserting all non-frivolous claims of confidentiality and privilege"; and
  • 3. If that fails, “submit only such information as is reasonably necessary to satisfy the needs of the court,” and ask the court to consider “procedures designated to minimize disclosure,” such as in camera review of confidential information under seal.

"[T]hese steps should satisfy a lawyer’s ethical duties under Rule 1.6,” the committee said, citing the ABA Model Rule that addresses the duty of confidentiality.

“If a motion to withdraw is based on grounds other than a failure to meet financial obligations, other Rules and principles may apply,” the committee said.

To contact the reporter on this story: Samson Habte in Washington, D.C. at shabte@bna.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bna.com

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