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By Samson Habte
Feb. 18 — An attorney who moves to withdraw from a litigation representation for ethical reasons might have grounds for resisting a court order that would require her to disclose client confidences to a judge who wants more information before ruling on the motion, the California bar's ethics committee advised in a recent opinion.
The committee said a dearth of authority made it difficult to “categorically opine on how the attorney must choose between her competing duties to maintain the client’s confidences and to obey the court’s order.”
Nevertheless, the committee urged lawyers not to reveal confidential information to support their withdrawal motion. If the judge insists, the committee said, there is no clear legal or ethical authority in California that either permits or forbids an attorney to comply with the court's directive.
The opinion responds to a hypothetical scenario of a lawyer who wishes to withdraw from a trade secrets case that a client filed against a competitor. The lawyer told her client's CEO that she discovered information that led her to conclude the claim lacked merit.
According to the opinion, the CEO said he did “not want to do anything until the day before trial at the earliest because that is the date of a big trade show in which Client and Competitor both will be participating.” The CEO said he did “not really care about winning or losing” and merely wanted “to keep the lawsuit going in order to damage Competitor’s public image leading up to the trade show,” the opinion states.
After she was rebuffed by her client, the lawyer filed a motion in which she stated that “ethical considerations” required her to withdraw. At a subsequent hearing, the lawyer told the judge her duty of confidentiality precluded her from saying more about the reasons for her motion. The judge then ordered the lawyer to provide details in a declaration filed under seal, and to appear in camera to discuss the issue.
The California bar's ethics committee cited a handful of out-of-state court decisions and bar opinions that address the tensions between the duty of confidentiality and the obligation to comply with court orders. Those authorities, which the committee characterized as “falling on both sides,” include:
• Arizona Ethics Op. 00-11 (2000) (attorney may refuse to disclose confidential client information responsive to a subpoena until tribunal enters final order requiring such disclosure);
• District of Columbia Ethics Op. 288, 15 Law. Man. Prof. Conduct 161 (1999) (lawyer subpoenaed by Congressional subcommittee to produce client file may, but is not required to, produce the file if threatened with contempt);
• Rhode Island Ethics Op. 98-02 (1998) (lawyer has duty to object to subpoena of client documents, but must comply with final court order requiring disclosure);
• Massachusetts Ethics Op. 94-7 (1994) (lawyer must resist IRS administrative summons requiring the lawyer to disclose the identity of clients from whom the lawyer has received cash in excess of $10,000 “until such time as a court orders disclosure”);
• Ex parte Enzor, 117 So. 2d 361 (Ala. 1960) (lawyer called before grand jury “correctly refused to answer the propounded question” about client even though he was cited for contempt and committed to jail); and
• Dike v. Dike, 448 P.2d 490 (Wash. 1968) (discussing “necessary prerequisites to compelling an attorney to disclose the address of his client”).
The committee said various authorities—including ethics rules, statutes, court decisions and bar opinions—do provide “some guidance” to lawyers who are asked to “choose between the important and conflicting obligations of protecting Client’s confidential information and obeying a court order.”
It said a lawyer who determines that she is ethically obligated to withdraw from a matter should take these steps:
▸ “To the extent the attorney cannot obtain the client’s consent to the withdrawal, the attorney will need to file a motion to withdraw, taking reasonable steps to avoid reasonably foreseeable prejudice to the client.”
▸ “An attorney may disclose to the court only as much as is reasonably necessary to demonstrate her need to withdraw, and ordinarily it will be sufficient to say only words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney-client relationship.”
▸ “To the extent such general language is deemed insufficient by the court, however, the attorney may only provide additional background information, but may not disclose confidential communications [or] information—either in open court or even in camera.”
▸ “If, notwithstanding all efforts by the attorney to prevent the court from entering an order compelling disclosure—including by requesting a stay of the order to allow time to file a writ petition—the court nonetheless orders disclosure, this Committee cannot categorically opine on how the attorney must choose between her competing duties to maintain the client’s confidences and to obey the court’s order.”
▸ “Once an attorney has exhausted reasonable avenues of appeal or other further review of such an order, the attorney must evaluate for herself the relevant legal authorities and the particular circumstances, including the potential prejudice to the client, and reach her own conclusion on how to proceed.”
Section 6103 of the California Business and Professions Code provides that an attorney's “wilful disobedience or violation” of a court order is grounds for “disbarment or suspension.”
The committee said the California State Bar Court has shot down “challenges to disciplinary findings under section 6103 based on the attorney's contention that the court order at issue was void or otherwise improper.” Quoting one opinion, the panel stated: “Once a court has jurisdiction and makes a ruling, an attorney has a duty ‘to respectfully yield to the rulings of the court, whether right or wrong.'”
But “section 6103 expressly applies only to orders with which the attorney ‘ought in good faith' comply,” and it is “not obvious that an attorney ought in good faith comply with an order compelling a violation of her duty to maintain client confidences,” the opinion states. Accordingly, the committee said it “cannot conclude that section 6103 by itself justifies disclosure under the circumstances.”
On the other hand, the committee said, no cases expressly recognize that a lawyer's duty of confidentiality trumps the duty to comply with court orders. The committee said the only decision that “squarely addresses the issue” is the concurring opinion in People v. Kor, 277 P.2d 94 (Cal. Ct. App. 1954).
In that case, an appeals court vacated the conviction of an accused drug dealer after concluding that the trial judge erred in ordering an attorney to testify about his privileged conversation with the defendant.
Although the Kor decision did not make any findings about the propriety of the lawyer's compliance with the order to testify, a concurring opinion stated that the lawyer “should have chosen to go to jail and take his chances of release by a higher court.” With the exception of that passage of dictum, the panel said, no California authority addresses the tension between the duty of confidentiality and the obligation to comply with court orders.
“This Committee acknowledges the duty of confidentiality to be among the most sacred duties an attorney owes to a client and cannot lightly—without direct supporting authority—conclude that it is ever acceptable to violate that duty, even in the face of a court order compelling disclosure,” the panel stated.
On the other hand, the committee said it was not “willing to conclude the opposite—that is, that an attorney may violate any court order, even one with which the attorney has a good faith basis to disagree.”
Accordingly, the committee said, “Once an attorney has exhausted reasonable avenues of appeal or other further review of such an order, the attorney must evaluate for herself the relevant legal authorities and the particular circumstances, including the potential prejudice to the client, and reach her own conclusion on how to proceed.”
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