ABA Provides Guidance for Attorneys Seeking to Withdraw from Representation

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The ABA Standing Committee on Ethics and Professional Responsibility was called upon to address the potential conflict between Court Orders and/or Rules requiring the bases for withdrawal of representation and the attorney’s obligation to maintain client confidences.  While the issue was raised in the context of a desired withdrawal for non-payment of fees in particular, the Committee provided guidance that can be applied more generally.  Specifically, the ABA has suggested that:

In order to comply with Model Rule 1.6 (Confidentiality), a lawyer who has a good faith basis for withdrawal under Rule 1.16(b)(5) (the client has failed to fulfill an obligation to the lawyer and has been given reasonable notice that the lawyer will withdraw) and/or 1.16(b)(6) (the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client), and who complies with the applicable procedural prerequisites of the Court for such motions, could: (a) initially submit a motion providing no confidential client information apart from a reference to “professional considerations” or the like;  (b) upon being informed by the Court that further information is necessary, respond, when practicable, by seeking to persuade the Court to rule on the motion without requiring the disclosure of confidential client information, asserting all non-frivolous claims of confidentiality and privilege; and, if that fails, (c) thereupon, under Rule 1.6(b)(5), submit only such information as is reasonably necessary to satisfy the needs of the Court, and preferably by whatever restricted means of submission, such as in camera review under seal, or such other procedures designated to minimize disclosure as the Court deems appropriate.

If the Court expressly orders the lawyer to make further disclosure, the exception in Rule 1.6(b)(6) for disclosures required to comply with a court order will apply, but the attorney may do so only to the extent “reasonably necessary” to comply with the order.

 

ABA Formal Opinion No. 476 (Dec. 19, 2016).

 

 

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