A recent Law 360 story, “ABA Urges Caution on Client Info in Fee Dispute Withdrawals,” reports that lawyers and judges should cooperate to protect client confidences when attorneys want to withdraw over a failure to get paid, the American Bar Association said in an ethics opinion.
 
Looking at the ethically dicey zone between attorney-client privilege and courts’ desire for a full accounting of a lawyers’ desire to withdraw from a civil case, the ABA’s Standing Committee on Ethics and Professional Responsibility said both sides should err on the side of caution and try to keep the lid on protected information in a fee dispute.

At the same time, the committee acknowledged that while lawyers generally have a right to quit a case when they’re not being paid as promised, they might well be in front of a judge who wants to know the details before ruling on a vague withdrawal request.

“Motions to withdraw based on a client’s failure to pay fees are generally grounded in the same basic right of a lawyer to be paid pursuant to the terms of a fee agreement with a client,” the opinion said.  “Nonetheless, courts have differed widely as to whether any specific information regarding a lawyer’s reasons for seeking withdrawal is required in a motion to withdraw, and if so, how much.”

Model Rule 1.16(b) provides that a lawyer may withdraw from representing a client when a client “substantially” fails to comply with an obligation to the lawyer and has been given reasonable warning about a possible withdrawal.  The rule also gives permission for a withdrawal when the representation will create an unreasonable financial burden on the lawyer, without expressly referring to withdrawal motions over unpaid fees.

At the same time, lawyers are bound to comply with the rules of tribunals, most of which require a formal withdrawal motion when a substitute attorney does not simultaneously enter an appearance, the committee noted.

Notwithstanding a comment in the model rule that a statement about “professional considerations” requiring termination should be sufficient for a court, many decisions have also included details about a fee dispute, indicating that the courts sought more than a brief motion statement and found the details pertinent to their decisions.

Ultimately, lawyers cannot know for certain when filing a motion to withdraw over a fee dispute whether a “professional considerations” motion will suffice, according to the committee.

If required by the court to support the motion with facts relating to the representation, a lawyer may under the rule on controversies between lawyer and client “disclose only such confidential information as is reasonably necessary for the court to make an informed decision on the motion,” the opinion said.

The committee also urged judges to find “balance” between attorneys’ ethical constraints and what they need to make a sound decision on a fee-focused withdrawal.  In-camera submissions and protective orders also provide limited utility for protecting client confidences.

“In some instances, judges may conclude that the procedural history and status of the case is sufficient to decide the motion without further inquiry,” the committee said.  “Or a judge may consider asking the lawyer merely to assure the court that the motion is brought in good faith and without purpose of undue delay.”

The opinion is Formal Opinion 476, Confidentiality Issues when Moving to Withdraw for Nonpayment of Fees in Civil Litigation, from the ABA Standing Committee on Ethics and Professional Responsibility.