Wisconsin Lawyer
Vol. 84, No. 7, July 2011

Lawyers generally know, or assume, that if they have entered an appearance in a matter, they must seek the permission of the court if they wish to withdraw. This obligation, however, does not come from the Rules of Professional Conduct for Attorneys (the Rules). Rather, SCR 20:1.16(c) requires a lawyer to comply with applicable law requiring notice or permission of a tribunal for withdrawal. Thus, the requirement that a lawyer actually seek permission of a court to withdraw comes from other law, such as a local court rule. In the absence of such other law, a lawyer is not required by the Rules to file a motion to withdraw or take other similar action, but a lawyer violates SCR 20:1.16(c) by ignoring such a law or rule when one exists. Almost all courts do have such a requirement and expect a lawyer to seek permission for withdrawal, and lawyers routinely and rightly assume they must seek leave of the court to withdraw.¹ One consequence of having to seek court approval for withdrawal is that the lawyer is usually asked to provide some reason to the court.

The Rules do not explicitly address the relationship between a lawyer’s duty of confidentiality under SCR 20:1.6, which requires lawyers to keep all information relating to a representation confidential, and the fact that courts routinely require lawyers seeking permission to withdraw to provide a reason. Comment [3] to SCR 20:1.16 does briefly address the issue:

“[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority. See also Rule 6.2. Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation. Difficulty may be encountered if withdrawal is based on the client’s demand that the lawyer engage in unprofessional conduct. The court may request 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. Lawyers should be mindful of their obligations to both clients and the court under Rules 1.6 and 3.3.”

The comment explicitly states that the lawyer may be obligated to keep the reason for withdrawal confidential and offers the optimistic suggestion that courts should be satisfied with an explanation that “professional considerations” require withdrawal. Lawyers, of course, may encounter judges who do not accept such explanations. Because lawyers are obliged to keep confidential all information relating to the representation of a client, whatever its source, almost any specific reason a lawyer gives for withdrawal would necessitate disclosing information protected by SCR 20:1.6. In addition to the obligation of confidentiality, SCR 20:1.16(d) imposes an affirmative duty on lawyers to take reasonable steps to protect clients’ interests when terminating a representation.

How then does a lawyer go about withdrawing in a manner that does not breach the duty of confidentiality to the client and protects the client’s interests?

What Not to Do

Wisconsin appears to have no cases in which a court imposed a disciplinary sanction for a lawyer’s revelation of too much information when seeking permission to withdraw. There is, however, case law from other jurisdictions that provides helpful guidance. The following are two examples of what not to do.

Example One. In In re Gonzalez,² a lawyer was disciplined for breaching confidentiality in a withdrawal motion. The lawyer was in a fee dispute with a client, and after being unable to resolve the dispute, filed a withdrawal motion with the court and provided a copy to opposing counsel. That motion alleged that the client was not paying bills in a timely manner, was failing to cooperate with the lawyer in trial preparation, had failed to make office appointments, failed to provide necessary information, and made misrepresentations to the lawyer. In addition, the lawyer attached to the motion seven letters to the client detailing the allegations made in the motion and further revealing the lawyer’s assessment of the case. After obtaining new counsel, the client filed a grievance against the lawyer with the District of Columbia’s Bar Counsel.

After determining a choice-of-law issue, the court found that the lawyer violated Virginia’s disciplinary rule prohibiting a lawyer from revealing information relating to the representation of a client that would be embarrassing or detrimental to the client.³ The court also rejected the lawyer’s contention that the lawyer was obliged by local court practice to disclose detailed information in support of a motion to withdraw, noting that, if necessary, the lawyer could have made disclosures in camera and made appropriate redactions.

Example Two. In Lawyer Disciplinary Board v. Farber,⁴ a lawyer represented a client on a criminal charge. After the client entered a plea, he asserted the lawyer misled him as to possible sentences, and the client filed a pro se motion to withdraw the plea. The lawyer then filed a motion to withdraw with the court, contending that the client either testified falsely at the plea hearing or intended to testify falsely at the hearing to withdraw the plea. The lawyer also attached an affidavit in which he accused the client of lying and disclosed a statement, made by the client to the lawyer, regarding the possible outcome of a trial.

After rejecting the lawyer’s contention that he was obliged by Rule 3.3 to make the disclosures contained in the motion to withdraw, the court found that the lawyer violated Rule 1.6(a) by disclosing the information used to support the motion and stated as follows:

“In this case, the respondent’s motion to withdraw and subsequent letter went beyond the type of communication appropriate to the termination of an attorney-client relationship. In the experience of this Court gained in reviewing the many records in cases before us, we may safely say that motions to withdraw as counsel are ordinarily rather attenuated. Here, attached to the motion to withdraw was an affidavit in which [the client] was accused of telling a lie and said to have stated that ‘he thought he would have been convicted of battery had the issue been presented to the jury.’

…

“Clearly, the statements of the respondent, at issue, in the motion to withdraw and in the letter of October 25, 1995, were inappropriate and unnecessary. The statements revealed confidential information, were potentially to the disadvantage of [the client] and were threatening.”

It is worth noting that in both Gonzalez and Farber, the court focused on the detrimental effect of the information disclosed by the lawyers in support of their motions for withdrawal. This is consistent with the implication of comment [3] to SCR 20:1.6, which notes that “difficulty may be encountered” when an explanation for withdrawal would involve disclosing the client’s desire for the lawyer to engage in unprofessional conduct.

What to Do

Both Gonzalez and Farber involved serious violations of the duty of confidentiality and provide clear examples of what not to do. Both are disciplinary cases, however, and therefore do not lay out guidelines as to what to do. As discussed above, there is little authority or guidance on the extent of a lawyer’s duty of confidentiality upon withdrawal and the remainder of this article reflects the author’s views on the appropriate extent of disclosures when seeking a court’s permission to withdraw from a matter. The views expressed here, of course, are not binding on any court or the Office of Lawyer Regulation.

When considering what should be done, it can be useful to consider the issue in light of the “impliedly authorized” exception to confidentiality found in SCR 20:1.6(a) and the duty to protect client interests found in SCR 20:1.16(d).

SCR 20:1.6(a) does not require the client’s informed consent for disclosures that the lawyer is impliedly authorized to make. As comment [5] to the Rule notes, impliedly authorized disclosures are those disclosures that are appropriate to carry out the representation. Or, as stated in section 61 of the Restatement (Third) of the Law Governing Lawyers, impliedly authorized disclosures are those disclosures that are necessary to advance the client’s interests. To what extent, then, are explanations to a judge when seeking permission to withdraw impliedly authorized?

When a client discharges a lawyer, the lawyer must withdraw pursuant to SCR 20:1.16(a)(3), and the lawyer is free to inform the court that the client has fired the lawyer, because that is necessary to accomplish the client’s goal. Commonly, however, lawyers seek to withdraw for other reasons, such as the client’s failure to pay the lawyer. Is the lawyer impliedly authorized to make disclosures concerning such reasons? The Rules grant lawyers a variety of grounds for permissive withdrawal in SCR 20:1.16(b), and if lawyers are able to rely on a specific section of the Rules as grounds for withdrawal, it stands to reason the lawyer should be able to cite that section when seeking permission from a tribunal, so long as doing so is consistent with protection of the client’s interests. Put another way, it makes little sense to provide specific legitimate reasons for withdrawal if the lawyer is prohibited from relying on those reasons because such a disclosure would be inappropriate.

Admittedly, however, viewing disclosures in support of a withdrawal motion as impliedly authorized so long as they are not detrimental to the client is not a perfect fit. It is, after all, hard to characterize a lawyer’s desire to withdraw, contrary to the client’s wishes, as advancing the client’s interests. As noted, however, in paragraph [14] of the Rules (in the scope section), the Rules are “rules of reason” and should be so interpreted. For example, in the recently issued Formal Ethics Opinion 09-455, the ABA’s ethics committee noted that the Model Rules do not neatly permit disclosure of client matters for conflicts checking when a lawyer is changing firms. The ABA’s ethics committee nonetheless found such disclosures permissible, if done in a limited manner consistent with the protection of client interests, because failure to allow the disclosures would inhibit lawyers from fulfilling their duty to provide conflict-free representation to their clients. Similarly, to interpret SCR 20:1.6 as preventing lawyers from making limited disclosures when seeking permission to withdraw for legitimate reasons would inhibit lawyers from fulfilling their duties to courts. It is also noteworthy that lawyers withdraw every day and are simply not disciplined for making routine and nonharmful disclosures in support of their motions to withdraw. Therefore, it should not ordinarily be regarded as a breach of the duty of confidentiality if a lawyer provides a general reason, such as a client’s failure to pay as agreed, in requesting a court’s permission for withdrawal.

Lawyers should be careful to not read the extent of permissible disclosure too broadly. As discussed above, lawyers face discipline for revealing too much information when seeking permission to withdraw. A practical approach is for the lawyer to consider whether it is likely that disclosing certain information would be detrimental to the client’s interests and avoid disclosing such information when seeking permission of the court for withdrawal.

This view is consistent with the view of confidentiality expressed in section 60 of the Restatement, which allows a lawyer to disclose client information when there is no reasonable prospect that disclosing the information will adversely affect a client’s material interest and the client has not forbidden disclosure. It may be argued that any disclosure would adversely affect the client; for example, if the lawyer tells the court the client is not paying, would that not make it harder for the client to hire another lawyer or provide the opposing party negotiating leverage? In seeking to balance the lawyer’s right to withdraw in certain circumstances with the duty of confidentiality to the client, however, the notion of what is “adverse” may be viewed as information that prejudices the client’s legal interests in the matter or otherwise damages the client, and in many cases in which the client is failing to pay the lawyer, that fact alone may not harm the strength of the client’s case.

So, under this analysis, the basic reason for withdrawal may often be regarded as fitting within the impliedly authorized exception to confidentiality found in SCR 20:1.6(a). Thus, a lawyer may normally disclose that the client is failing to fulfill an obligation to the lawyer regarding the lawyer’s services (that is, not paying) and rely on SCR 20:1.16(b)(5) or that the lawyer and client have a fundamental disagreement about how to proceed and rely on SCR 20:1.16(b)(4). A lawyer normally should not, however, voluntarily disclose what the disagreement is about nor should a lawyer disclose that the client is persisting in a course of conduct that the lawyer reasonably believes is criminal or fraudulent.⁵ In many circumstances, disclosure of the fact that a client has not paid the lawyer as previously agreed will not adversely affect a material interest of the client, but the lawyer should be careful to avoid disclosure of information about the client’s financial condition if such a disclosure would likely be detrimental to the client. Similarly, the fact that the client intends to engage in fraudulent conduct or is insisting on pursuing a course of conduct that the lawyer finds repugnant should not be disclosed.

The following are some practical considerations when considering what to put in a withdrawal motion:

• Less is better. Keep the reasons for seeking permission to withdraw as general as possible. Do not put excessive or irrelevant information in the withdrawal motion, and certainly do not put in any information that is likely to hurt the client or violate attorney-client privilege. Keep any information that is put in writing brief. If necessary, more information can be provided later, either orally or in writing.
• Do not go to war with the client. Even if the client is hostile and extremely difficult, a withdrawal motion is not a place to take a “gloves-off” approach, which appears to be the approach taken by the lawyers in Gonzalez and Farber. While SCR 20:1.6(c)(4) provides what is commonly referred to as the “self-defense” exception to confidentiality, this exception would rarely apply to withdrawal motions, because in most instances, there is no claim or allegation requiring a response. A lawyer who is seeking the court’s permission to withdraw still has a client to whom the lawyer owes fiduciary duties.
• Do not use attachments that contain too much information. The lawyers in Gonzalez and Farber both got in trouble because of the attachments to their withdrawal motions. Particularly troublesome in both of these cases was the fact that the attachments disclosed communications between the lawyer and the client, thereby jeopardizing the attorney-client privilege.
• Soften language. Instead of saying that the client is hostile and irrational and accusing the lawyer of misconduct, say that the lawyer-client relationship has deteriorated to such an extent that it is difficult or impossible to provide competent representation. Use “professional considerations” as code language for “I have to withdraw because my client wants me to violate the Rules,” and tell the court that you believe your duty of confidentiality prohibits you from revealing further information. Likewise, state that the client has not met his or her financial obligations to the lawyer rather than discussing the client’s serious financial difficulties.
• Rely on the Rules. Cite SCR 20:1.6 and comment [3] of SCR 20:1.16 to judges who press for information that may be potentially detrimental to the client.
• Take protective measures, if necessary. If required to disclose information that may be detrimental to the client, ask the court for permission to disclose in camera, as suggested by the court in Gonzalez, or under seal. A lawyer is permitted to reveal otherwise confidential information pursuant to court order⁶ and therefore may make court-ordered disclosures, but the lawyer is still obligated to try to limit disclosures, to the extent possible, to protect the client. Therefore, if it is necessary to reveal potentially detrimental information, filing information under seal can be a way to protect the client’s interests.

Endnotes

¹ See, e.g., OLR v. Hartigan, 2005 WI 164, 286 Wis. 2d 546,706 N.W.2d 818.

² 773 A.2d 1026 (2001).

³ Virginia, at the time, followed the now superseded Code of Professional Responsibility, which was somewhat more permissive with respect to disclosures than the current Rules of Professional Conduct for Attorneys.

⁴ 488 S.E.2d 460 (W. Va. 1997).

⁵ SCR 20:1.16(b)(2).

⁶ SCR 20:1.6(c)(5).

Wisconsin Lawyer