Attorney Withdrawal: Protect The Client, Obey The Court Or Go To Jail?

Peter Jarvis and Allison Martin Rhodes are Partners in our Portland office Vince Farhat is a Partner and Marissa Buck an Associate in our Los Angeles office

In Formal Opinion No. 2015-192, the California State Bar Standing Committee on Professional Responsibility and Conduct addressed the difficult choices faced by lawyers who are ethically required to seek leave to withdraw from a matter and who cannot publicly disclose the reasons for withdrawal in light of their duty of confidentiality but who are ordered by the trial court to disclose their reasons to the court on an in camera basis. In its digest, the opinion states that, while the committee "cannot categorically opine on whether or not it is acceptable to disclose client confidences even when faced with an order compelling disclosure, [the] committee does opine that, whatever choices the attorney makes, she must take reasonable steps to minimize the impact of that choice on the client." Although there are portions that are likely to be inapplicable outside of California, the opinion nonetheless provides a good background of the kinds of things that all lawyers may wish to consider when contemplating withdrawal from a matter in litigation.

Withdrawal 101: Sometimes No Confidences are Required

As a general proposition, there are times under both the California Rule of Professional Conduct (CRPC) 3-700 and ABA Model Rule 1.16 (as adopted in most other states) when withdrawal may be either permissive or mandatory. In California as elsewhere, however, the rules typically require court permission before a lawyer may withdraw from a matter that is pending in litigation – especially where, as in the opinion, the client is an artificial entity which can only appear through counsel. The question in all jurisdictions thus becomes what a lawyer seeking to withdraw must, may or must not say to the court if asked why the lawyer wants to withdraw. This question is important because, whether one looks at duties of confidentiality under CRPC 3-100, ABA Model Rule 1.6 or various state statutes regarding confidentiality such as Cal. B&P Code §6068(e)(1) and Cal. Evidence Code §915, there is no carte blanche exception that automatically allows disclosure of anything and everything simply because the lawyer wishes to or even correctly believes he or she is obligated to seek leave to withdraw.

As the opinion notes and as our own experience generally teaches us, most courts will generally accept a simple...