February 1998
Maintaining Confidentiality when Withdrawing
from Representation
by Constance V. Vecchione
First Assistant Bar Counsel
Although marketing seminars
and other CLE programs for lawyers tend to focus on getting and keeping clients,
the flip side of that issue often also presents problems. That is, when and
how can a lawyer terminate an existing attorney-client relationship? The subject
is a large one, too broad for one newspaper column but well-covered generally
by M.R.Prof.C. 1.16. These rules describe the
situations in which withdrawal is mandated, those in which it is permitted,
and the steps required of a lawyer after withdrawal both to protect the former
client's interests and to return the file, or portions of the file, to the client.
This article will discuss one narrow aspect
of the issue of withdrawal from representation, namely, its interaction with
rules on client confidentiality. Specifically, in situations in which the lawyer
is required by the rules of a court or other tribunal (and therefore required
by M.R.Prof.C. 1.16(c)) to obtain the tribunal's
permission before withdrawing, what is the lawyer permitted to say in a motion
to withdraw?
The problem, of course, is that the lawyer must proffer a reason that the judge
will deem adequate without breaching client confidentiality under M.R.Prof.C.
1.6.
Judges are not unaware of this very common
dilemma. The time-honored solution to the problem is for the lawyer to file
a generic motion asking to withdraw citing, for example, irreconcilable differences
between client and counsel as to strategy or tactics, or deterioration of the
attorney-client relationship, or lack of communication. Assuming that trial
or other deadlines are not imminent, and especially if the client does not oppose
withdrawal, the court is unlikely to require that more be disclosed before allowing
the motion.
If the motion is denied, the lawyer can consider
at that point whether to request reconsideration and, if so, in what manner.
For example, the lawyer might request that any additional information submitted
be impounded, be considered ex parte and, especially in nonjury cases,
be acted upon by a judge other than the trial judge. Compare M.R.Prof.C.
3.3(e) (former Supreme Judicial Court Rule 3:08 [Prosecution and Defense
Functions], DF 13), requiring these steps of criminal defense counsel
who seek to withdraw because the client intends to commit perjury.
Second, in requesting reconsideration, the
lawyer must consider what more, if anything, is allowed to be said. In
a recent decision voting in a pending matter to administer an admonition to
an attorney for disclosing confidential information in his motion to withdraw,
the Board adopted the report of its appeal panel holding that a lawyer can only
reveal those facts necessary to support the motion to withdraw. See also
Opinion no. 96-3 of the MBA Committee on Professional Ethics (lawyer in
motion to withdraw "should reveal the minimum amount of confidential information
to achieve his objective" and "should also take other steps...to prevent the
spread of the confidential information.").
Although both the Board in the pending admonition
and the MBA Committee in the ethics opinion considered it implicit that the
lawyer can reveal some information that might otherwise be confidential, the
rules do not so state and the issue has not been addressed by the Supreme Judicial
Court. Bar Counsel's view is that there may be certain confidential information
which cannot be revealed to support a motion to withdraw; in those cases, the
lawyer may have to remain as counsel. In any event, it may not be necessary
that opposing counsel receive the confidential information. There could
accordingly be a disciplinary violation even if the information revealed is
information that the trial court needs to make a decision. Compare Private Reprimand
no. 94-2, 10 Mass. Att'y Disc. R. 309, 311 (1994) ("`the term `necessary' as
used in DR 4-101(C)(4) refers not only to the content of the information revealed,
but also to how and to whom the secret is revealed.'")
Finally, there are no special rules for problem
clients. The Board in very certain terms emphasized in the pending admonition
that rules protecting client confidences "apply equally to the `difficult' client
and the `good' client." In that case, the lawyer, in support of an otherwise
acceptable motion to withdraw, filed a supporting affidavit providing rich detail
concerning his difficulties with the client: the client's procrastination, her
lack of cooperation, and her penchant for argument among other problems. See
also, Private Reprimand no. 92-34, 8 Mass. Att'y Disc. R. 327, 330 (1992)
(attorney who "found himself harnessed to a hostile client who chose to criticize
the [attorney] publicly and who widely disseminated his complaints against the
[attorney] to the media" was privately reprimanded for sending the client's
letters to the court.)
Lawyers who are seeking to withdraw from
the representation of this type of difficult client should take a deep breath
before filing the motion. Wait 24 hours after writing the motion and look at
it again, or ask a partner or associate to review it to make sure that, at least
when the motion is first filed, no confidences have been revealed. If the motion
is denied and reconsideration is requested, make sure that adequate steps are
taken to minimize both what is revealed and to whom it is revealed. Even where
disclosure is permissible, it must be limited to what is reasonably necessary
to effect withdrawal.
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