Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.  

No Way Out? Withdrawal and Confidentiality
Among the most interesting questions in legal ethics are the dilemmas that arise when a lawyer is caught between conflicting ethical duties. “Interesting” is, perhaps, curious choice of words; for the lawyer involved, it often doesn’t begin to describe the stress and potential costs of being caught in such a bind.
Mid-stream withdrawal from a litigation matter, or other matter pending before a tribunal, can put the lawyer in such a conflict. It arises at the intersection of the lawyer’s duties on withdrawal (Rule of Prof. Conduct 3-700), the lawyer’s duty to protect client confidentiality (Bus. & Prof. Code § 6068(e); Rule of Prof. Conduct 3-100), and the procedural requirements for withdrawal set forth by C.C.P. § 284 and Cal. Rule of Court 3.1362.
Rule 3-700(A)(1) states the well-known requirement that a lawyer may not withdraw from a matter pending before a tribunal without permission of the tribunal if that tribunal’s rules require such permission. Section 284 specifies that permission in an action or special proceeding may be obtained in one of two ways: either with consent of the client, by filing a substitution of attorney form, or by a court order, following an application by the client or attorney.
Less well known is Rule 3-700(B), which governs when an attorney must withdraw from representation. An attorney has no choice but to withdraw when: “(1) The member knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or (2) The member knows or should know that continued employment will result in violation of these rules or of the State Bar Act; or (3) The member's mental or physical condition renders it unreasonably difficult to carry out the employment effectively.” 
Grounds (1) and (2) can be problematical on withdrawal where the client is unwilling to sign a substitution of attorney. Ground (1) always involves and ground (2) often involves negative information about the client that the attorney has a duty to keep confidential under California’s broad duty of confidentiality set forth in Bus. & Prof. Code § 6068(e)(1): “It is the duty of an attorney....[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Rule 3.1362 acknowledges the limits that attorneys have when stating a factual basis for a motion to withdraw; it mandates that the required form declaration supporting a motion to withdraw “must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).”
It is not uncommon in such motions to see vague language citing “a breakdown in the attorney client relationship” or “the existence of a conflict of interest” or a simple conclusive recitation that “grounds exist under Rule of Professional Conduct 3-700” as the factual basis for the motion to withdraw.
If the client has declined to sign a substitution of attorney form, the client may well oppose the motion to withdraw.  The client may dispute that the attorney has grounds under Rule 3-700(B) to withdraw; the client may believe that the attorney seeks to withdrawal for other reasons related to the attorney’s own self interest , such as the prospect, in a contingent fee case, that the recovery is going to be far less than anticipated.
And the Court may suspect that there is more to the story as well, and may even question the attorney’s good faith in making the motion. An example of what could happen is Manfredi & Levine v. Superior Court (Barles) (1998) 66 Cal.App 4th 1128. In Manfredi, the attorneys made a motion to withdraw, claiming that they received unsolicited and confidential information that led them to believe it would be unethical to continue to represent the clients. The clients refused to substitute them out of the case and claimed the lawyers had not disclosed to them the nature of the purported conflict. After consultation with ethics counsel, the lawyers supported their motion with a declaration making a blanket assertion that it could not continue to provide representation without violating the State Bar Rules of Professional Conduct.  The moving papers did not provide any details of the ethical dilemma because, according to the attorneys,they could not disclose the information to their clients, the Barleses, because to do so would violate confidentiality rules. As expressed by the appellate court:
 “To put it charitably, the trial court was skeptical of [the lawyers’] motive[s]. It stated, ‘What we have here is the use of every [delaying] tactic known to man. And now they say they have some secret information which creates an unknown conflict which violates some kind of unknown State Bar rule.  Please, it's hardly worth even discussing it.” (Id. at 1131.)
Motion denied. And worse, the appellate court found that there was no abuse of discretion. While the trial court has broad discretion to accept good faith assertions of conflict, it does not have to accept them if it questions counsel’s good faith. “The trial court still has a duty to explore the conflict, and counsel has a corresponding duty to respond, and to describe the general nature, as fully as possible but within the confines of privilege.” (Ibid.)
The appellate court suggested a way out. The lawyers could have requested an in camera hearing for the court to consider information relevant to the claim of conflict. But the trial court did not have a duty to offer an in camera hearing. 
To avoid this potential trap, when a motion to withdraw seems like the only way out, the lawyer making it should always request an in camera hearing to discuss the basis for the motion.
-- David Cameron Carr
**No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**