NOTE: For attorney perspective regarding motions to withdraw, please refer to RI-387
February 10, 2023
A court should require a lawyer to reveal information protected under MRPC 1.6 only to the extent reasonably necessary to adjudicate the motion to withdraw. In eliciting such information, only the court, and no other counsel or parties, should examine the lawyer.
References: MRPC 1.16, 1.6(c)(2), MCJC 3, RI-51.
Judges have inquired about the balance between a lawyer’s duty not to reveal information protected by MRPC 1.6 and a court or other tribunal’s need to elicit information to decide whether to grant a lawyer’s motion to withdraw in a litigated matter. Specifically, inquiries have been made as to the information that can ethically be provided by a lawyer or requested by a court, and the means by which that information should be requested and provided, in connection with a motion to withdraw.
Bases for Lawyer’s Withdrawal
Mandatory Withdrawal. MRPC 1.16(a) provides for three circumstances in which the attorney must withdraw from representation:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(3) the lawyer is discharged.
Permissive Withdrawal. A lawyer may wish to withdraw even when not required to do so. MRPC 1.16(b) prescribes various reasons a lawyer may request withdrawal:
(1) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer’s services to perpetrate a crime or fraud;
(3) the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
Whether the lawyer seeks mandatory or permissive withdrawal from a litigated matter, the lawyer must continue to perform services to protect the client’s interests until excused by the court. See, e.g., RI-51: “When a client notifies a lawyer of the lawyer's discharge from a matter, the lawyer is required to promptly pursue appropriate motions for withdrawal. Until the tribunal acts to relieve the lawyer, the lawyer should continue to perform as legal representative for the client.” The court has discretion to require the lawyer to “continue representation notwithstanding good cause for terminating the representation.” MRPC 1.16(c).
Courts’ Adjudication of Motions to Withdraw
Judges have duties to “respect and observe the law[,]1 “perform the duties of office impartially and diligently,”2 and “dispose promptly of the business of the court.”3 In the context of a permissive motion to withdraw, judges must determine whether “good cause” exists to grant the motion to withdraw, whether the withdrawal will jeopardize the lawyer’s client’s interests, and whether the withdrawal is a tactical ploy or will otherwise unfairly prejudice a party. These determinations may require the court to probe further into the bases for the withdrawal.
Whether and How Much to Ask
The comment to MRPC 1.16 under Mandatory Withdrawal states that “[t]he court may wish an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.” Such a statement from the lawyer should signal to the court that the lawyer-client relationship has been fundamentally damaged. It should not be made lightly by the lawyer seeking withdrawal. A court should rarely order disclosure of the lawyer’s specific reasons for the mandatory withdrawal, as doing so will force the lawyer not only to divulge otherwise protected client information but also to communicate information that could prejudice the lawyer’s client, particularly if the withdrawal is based on MRPC 1.16(a)(1) (“the representation will result in violation of the Rules of Professional Conduct or other law”). If withdrawal is based on MRPC 1.16(a)(2) (“the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client”), forced disclosure of the reason(s) for withdrawal could cause needless embarrassment to the lawyer. If withdrawal is based on MRPC 1.16(a)(3), (“the lawyer is discharged”), there is usually nothing to be gained by disclosure of that fact. As noted in the Comment: “A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services.”4
In the case of a “permissive withdrawal” a court may be more tempted to request or require disclosure of information protected by MRPC 1.6. The lawyer’s election to withdraw is based on the lawyer’s judgment that withdrawal “can be accomplished without material adverse effect on the interests of the client,” or for “good cause” including but not limited to the bases enumerated in MRPC 1.16(b)(1)-(5). If the court agrees that the client’s interests will not be adversely affected by the withdrawal, e.g., the case is at an early stage and/or the client has retained substitute counsel, ordinarily there will be no need to inquire as to the lawyer’s reasons for withdrawal. If, on the other hand, the lawyer’s request to withdraw is based on some species of “good cause,” the lawyer very likely possesses negative information about the client that could be prejudicial if disclosed to the court or an adverse party. After all, none of the bases in MRPC 1.16(b)(1)-(4) tend to reflect positively on the client.
Discretion is the rule to be followed. Usually, a lawyer’s representation that there has been a “breakdown in the lawyer-client relationship” should be satisfactory to the court. The court may require the client to retain substitute counsel within a fixed time and comply with other scheduling deadlines. In extraordinary situations, e.g., where the client contests the motion to withdraw and/or the case is at an advanced stage and withdrawal is believed to be a delay tactic, a court may wish to know more about the basis for the withdrawal.
If the court requests the lawyer to disclose further information, the lawyer should provide as much information as is practicable without revealing information protected by MRPC 1.6 and the court should avoid requiring anything more. If, however, the requested information would include information protected by MRPC 1.6, the lawyer should inform the court that the lawyer cannot provide additional information as such disclosure would violate attorney-client confidences under MRPC 1.6. This approach is described in the comment to MRPC 1.6 under Disclosures Otherwise Required or Authorized: “absent waiver by the client, paragraph (b)(1) requires the lawyer to invoke the privilege when it is applicable[.]” The court must then consider whether it is necessary to order the attorney to divulge confidences under MRPC 1.6(c)(2). If so, “[t]he lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.” Id.
When questioning the lawyer on the motion to withdraw, the judicial officer should be the sole inquirer regarding disclosure of otherwise protected information. If opposing counsel is given the opportunity to question the withdrawing lawyer, opposing counsel may use the hearing on the motion to withdraw to gain the opponent’s legal strategy, to obtain otherwise privileged information not relevant to the motion to withdraw, or to make an argument regarding the withdrawal motion to the advantage of their own client which may impede the judicial officer’s sole discretion in the withdrawal process. The withdrawing lawyer is an officer of the court and should only be questioned by the judicial officer as the judicial officer is the only official that can require disclosure of protected client information under MRPC 1.6(c)(2).
In ordering a lawyer to disclose otherwise protected information, a court should proceed cautiously. Depending on the circumstances, the court may inquire whether the lawyer has made reasonable efforts to reconcile with the client and whether the client has been given fair warning that the lawyer intends to withdraw. On the other hand, it would not be prudent to order the attorney to provide details of the client’s recalcitrance, as disclosure of such information could have an adverse effect on the lawyer’s client’s case by portraying the client in a negative light.
Ordering disclosure of protected information should be exceptional, rather than normal practice, and narrowly tailored to what is reasonably necessary to allow the court to fulfill its duties of impartiality and diligence as required under Canon 3. If the court deems it necessary to order disclosure of protected information, only the court should elicit that information. The court should not allow another party or lawyer to examine the attorney regarding the motion to withdraw. The lawyer is an officer of the court and as such should be questioned by the tribunal only. Rule 1.6 allows disclosure of protected information only if ordered by a court, and not in response to questions posed by parties or their counsel.
1 MCJC Canon 2 B.
2 MCJC Canon 3.
3 MCJC Canon 3 A.(5).
4 The client’s right to terminate the lawyer’s services without consequences is not limitless, however. For example, in RI-51 the Committee opined that “[i]f a lawyer believes, but does not know, a client’s discharge of the lawyer is frivolous or tactical, the lawyer cannot reveal that information to the tribunal considering the motion for withdrawal unless the client consents or unless ordered by the tribunal.” If the court perceives the withdrawal to be tactical the court may, for example, seek confirmation whether the client understands that the withdrawal will not materially delay the action.