Ethics Corner Article
Dear Ethics Committee:
I represent a client in a litigated matter. Circumstances have developed that make it necessary for me to file a motion to withdraw from the case. Are there limitations on the things I may say in my motion to withdraw?
Yes. You must consider your obligation to maintain client confidences under Rule 1.6 and to take reasonably practicable steps to protect the client’s interests under Rule 1.16(d). This requires careful consideration of the circumstances requiring withdrawal, the status of the litigation, applicable court rules, and other factors.
This is the second in a series of corners regarding ethical considerations when withdrawing from representation. The first corner provided an overview of Rule 1.16 and withdrawal for non-payment and/or failure to communicate. This corner addresses some ethical issues in drafting motions to withdraw.
When withdrawing from representation, care must be taken to avoid material adverse effect on the client’s interests. Rule 1.16(d). This means the attorney must not unnecessarily reveal information relating to the representation. Rule 1.6(b) (“lawyer may reveal [confidential] information to the extent the lawyer reasonably believes necessary” to accomplish one of the purposes listed in the Rule).
Difficulties arise when the lawyer’s withdrawal is triggered by a client demand that the lawyer engage in unprofessional conduct. Rule 1.16, cmt [3]; see Matza v. Matza, 226 Conn. 166, 180, 627 A.2d 414 (1993) (counsel permitted to withdraw based upon reasonable belief client’s proposed financial affidavit was false or misleading; client not entitled to evidentiary hearing on the issue). “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.” Id. The comments address this dilemma by stating “[t]he lawyer’s statement that professional consideration require termination of the representation ordinarily should be accepted as sufficient.” Id. Best practices suggest that the attorney should include in the prayer for relief a request that any hearing on the motion be conducted outside the presence of opposing counsel in order to protect the client’s interests.
Rule 1.16(a)(1) provides that a lawyer must withdraw if their representation will result in violation of the rules of professional conduct or other law. This addresses situations where the lawyer knows their representation will be used in the future to perpetrate or facilitate a crime or fraud. See Rule 1.2(d). Rule 1.16(b)(2) provides that a lawyer may withdraw if the client persists (presumably, against the lawyer’s advice) in a course of action the lawyer reasonably believes is criminal or fraudulent. See cmt. [2] (“[t]he lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct….”). Rule 1.16(b)(3) provides that a lawyer may withdraw if the client has used the lawyer’s services to perpetrate the crime or fraud. That is, the crime or fraud is complete by the time the lawyer becomes aware it has occurred, and that his or her advice was used to commit it.
Rule 3.3(b) addresses the lawyer’s obligations with respect to litigated matters: if a lawyer representing a client in an adjudicative proceeding knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding, the lawyer “shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” Comment 10 states that “[i]f withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6.” What is “reasonably necessary to remedy the situation” can only be determined under the specific circumstances.
Rules 1.6(b), 1.16, and 3.3 frame the issue of attorney withdrawal, but offer no specific guidance as to the extent of information that may be disclosed. Discharge by a client and withdrawal by a lawyer are addressed in Section 32 of the Restatement (Third) of the Law Governing Lawyers. Comment d states that “[i]n applying to withdraw …it would not be permissible for the lawyer to state that the client intended to pursue a repugnant objective. A lawyer therefore will often be limited to the statement that professional considerations motivate the application.” A court might find this shorthand insufficient, particularly if the case is close to trial. The hope is that courts will be sensitive to the attorney’s ethical constraints when considering a motion to withdraw. See ABA Formal Op. 93-370, at 4 (1993) (lawyer should not reveal to court limits of lawyer’s settlement authority).
The question arises how the attorney should proceed if the court requests additional details. An attorney faced with this difficult issue may consider submitting additional information under seal, requesting an in camera ex parte hearing, attempting to explain the prejudice that might result from further disclosure, and consider requesting the court to recuse itself if prejudicial information is disclosed.
This Ethics Corner Article was submitted for publication to the NHBA Board of Governors at its November 18, 2021 Meeting. The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the Bar News and other NHBA media outlets. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison.