NOTE: For judicial perspective regarding motions to withdraw, please refer to JI-154.
RI-387
February 17, 2023
SYLLABUS
A lawyer may not ethically reveal confidences or secrets protected by MRPC 1.6 in furtherance of a motion to withdraw unless ordered by the court or tribunal to do so. If the court requests additional information that would require disclosure of confidences or secrets, the lawyer should invoke MRPC 1.6 and not make disclosure. If the court orders the lawyer to reveal otherwise protected information, the lawyer may ethically reveal only such information as is reasonably necessary to comply with the court’s order.
References: MRPC 1.16, 1.6(c)(2), RI-296, RI-51.
TEXT
Attorneys 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 make informed decisions on 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.
Lawyer’s Duty Not to Reveal Confidences or Secrets
MRPC 1.6(b) provides generally that a lawyer may not reveal client confidences or secrets.1 There are exceptions to this prohibition, including “when required by law or by court order[.]” MRPC 1.6(c)(2). Motions to withdraw test the boundaries of what a lawyer can ethically reveal and what, if anything, a court should order a lawyer to reveal regarding the basis for the motion to withdraw.2 From both perspectives, less is usually more.
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. Under MRPC 1.16(b), a lawyer may seek withdrawal if to do so “can be accomplished without material adverse effect on the interests of the client,” or for any of six enumerated reasons:
(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.
If the lawyer seeks permissive withdrawal from a litigated matter, the lawyer must advise the client that withdrawal depends on permission from the tribunal in the pending case. MRPC 1.16(b). Further, although not stated in the rule, a lawyer should timely provide the client with the motion to withdraw and notice of the motion hearing.
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.” Of course, the court has discretion to require the lawyer to “continue representation notwithstanding good cause for terminating the representation.” MRPC 1.16(c).
Whether and How Much to Tell
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.” This statement 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 in the litigation, 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.”3
In the case of a “permissive withdrawal,” a lawyer may be more tempted to disclose 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). Discretion is the rule to be followed, on the part of the lawyer. 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 should provide as much information as is practicable without revealing information protected by MRPC 1.6. If, however, the requested information would necessarily include information protected by MRPC 1.6, the lawyer should inform the court that the lawyer is unable to 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.
CONCLUSION
Lawyers must or may seek termination of the attorney-client relationship as provided in MRPC 1.16. Irrespective of the basis for withdrawal, a lawyer must honor the lawyer’s ongoing confidentiality obligations under MRPC 1.6, which survive withdrawal. In connection with a motion to withdraw, a lawyer should disclose information protected by MRPC 1.6 only if ordered by a court and only to the extent reasonably necessary to comply with the court’s order.
1 “Confidence” is defined as “information protected by the client-lawyer privilege under applicable law[.]” “Secret” is defined as “other information gained in the 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.” MRPC 1.6(a).
2 See RI-296 for whether a lawyer may charge for services in connection with a Motion to Withdraw.
3 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.