Opinion Highlights What Not to Say When Trying to Drop Litigation Client

By Joan C. Rogers  

An attorney who wishes to withdraw from representing a client in litigation shouldn't inform the court that the client hasn't paid its legal bills or is being uncooperative about discovery, the Oregon bar's ethics committee stated in an August opinion (Oregon State Bar Legal Ethics Comm., Op. 2011-185, 8/11).

Unless an express exception applies, the rule of lawyer-client confidentiality must be honored during the process of withdrawal, the opinion makes clear.

Other authorities have expressed much the same view.

Irreconcilable Differences.

In the scenario presented to the committee, an irresolvable rift has developed between a lawyer and a litigation client. The lawyer intends to end the representation and wishes to make one of the following statements in the motion to withdraw:

  • My client won't listen to my advice.
  • My client won't cooperate with me.
  • My client hasn't paid my bills in a timely fashion.
  • My client has been untimely and uncooperative in making discovery responses during the course of this matter.

The duty of confidentiality specified in Oregon Rule of Professional Conduct 1.6(a) precludes the lawyer from making any of these statements in the motion to withdraw, the committee declared.

Rule 1.6(a) prohibits lawyers from revealing information relating to the representation of a client unless disclosure is implicitly authorized, or the client gives informed consent, or one of the seven exceptions set out in subsection (b) applies.

The obligation not to reveal information relating to the representation of a client continues even when moving to withdraw from representing a client, the committee said.

Protected Information.

Under the ABA Model Rules, a lawyer's duty of confidentiality covers “all information relating to the representation, whatever its source.” Model Rule 1.6 cmt. [3].

Oregon, however, uses concepts adapted from the Model Code's DR 4-101(A) to describe what information is protected. Rule 1.0(f) defines “information relating to the representation of a client” to denote both “information protected by the attorney-client privilege under applicable law, and other information gained in a current or former professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.”

Depending upon the specific factual circumstances, the panel said, the statements that the lawyer proposes to make in the motion to withdraw would be embarrassing or would be likely to be detrimental to the client. Therefore, it said, the statements seem likely to constitute information relating to the representation of a client which must be kept confidential under Rule 1.6(a).

The opinion points out, for example, that a client's inability or refusal to pay counsel's legal bills may impair the client's ability to resolve the dispute with the opposing party. Similarly, a client's unwillingness to cooperate with discovery may lead the opponent to file additional pleadings or seek sanctions.

“To the extent the withdrawal is based on 'information relating to the representation of a client,' the Lawyer may not reveal the basis for the withdrawal to the court unless disclosure is permitted by one of the narrow exceptions in Oregon RPC 1.6(b),” the opinion states.

No 'Controversy' Yet.

Rule 1.6(b)(4) allows disclosure reasonably necessary “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.”

That exception would not apply under the circumstances presented here, the committee found. Neither a disagreement between the lawyer and client about how the client's matter should be handled nor the client's failure to pay fees when due constitutes a “controversy between the lawyer and the client” within the meaning of the exception, it said.

The two most obvious examples of such a controversy, the committee said, are fee disputes and malpractice claims. “A client's dissatisfaction with the lawyer's performance may ultimately ripen into a controversy, but at the point of withdrawal, such a controversy is inchoate at best,” the opinion states.

If Ordered to Tell, Limit Disclosure.

If the court asks the attorney about the basis for the withdrawal motion, the committee said, the lawyer may look to Comment [3] to Model Rule 1.16, which indicates that “The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.”

The committee also drew on an Oregon desk book which states that “In most instances, it should be sufficient to state on the record or in public pleadings that the situation is one in which withdrawal is appropriate and to offer to submit additional information under seal if the court so desires.” The Ethical Oregon Lawyer §4.3 (Oregon CLE 2006).

Rule 1.6(b)(5) permits disclosure of information regarding the representation of a client to the extent the lawyer reasonably believes necessary “to comply with other law, court order, or as permitted by these Rules.”

In the event a court orders the lawyer to reveal the basis for the request to withdraw, Rule 1.6(b)(5) permits disclosure of information relating to the client's representation, but only to the extent reasonably necessary to comply with the court order, the committee advised.

The lawyer should take steps to limit unnecessary disclosure, it added, such as by offering to submit information under seal or outside the presence of the opposing party.

Other Situations.

In a footnote, the committee said that if a litigation client fires its attorney, it would be appropriate for the lawyer to tell the court that the motion to withdraw is brought pursuant to Rule 1.16(a)(3). That rule requires a lawyer to withdraw from representing a client if the lawyer is discharged.

The committee said its opinion assumes that the lawyer-client dispute here does not involve whether the lawyer risks doing something improper. That situation, it said, was analyzed in Oregon Ethics Op. 2005-34 (2005), which indicates that if a client will not rectify perjury the lawyer's only option is to withdraw, or seek leave to withdraw, without disclosing the client's wrongdoing.

Full text at http://www.osbar.org/_docs/ethics/2011-185.pdf.  

The ABA/BNA Lawyers' Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and BNA.

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