Guidance offered on confidentiality issues when a lawyer ends representation for non-payment

The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 476 that addresses confidentiality issues that arise when a lawyer moves to withdraw from a civil case because of a client’s failure to pay legal fees.

The opinion recommends a process for the lawyer and the trial judge to follow when the lawyer seeks to withdraw from civil litigation because of fee issues and how much, if any, confidential client information the lawyer should disclose in filing a motion to withdraw. The opinion notes that sticky situations can arise, and that “this requires cooperation between lawyers and judges.”

In a lawyer’s request to withdraw as counsel in a civil proceeding based on a client’s failure to pay, at least two ABA Model Rules of Professional Conduct come into play. A lawyer has a duty of confidentiality under Rule 1.6. That rule must be reconciled with the court’s need for sufficient information upon which to rule on motions made consistent with Rule 1.16, which deals with declining or terminating representation.

Under the guidance in Formal Opinion 476, a lawyer who has a good faith basis for withdrawal under subsections of Rule 1.16 should first submit a motion providing no confidential client information apart from a reference to “professional considerations” or the like. “Upon being informed by the court that further information is necessary, respond, when practicable, by seeking to persuade the court to rule on the motion without requiring the disclosure of confidential client information, asserting all non-frivolous claims of confidentiality and privilege,” Formal Opinion 476 said in its guidance to attorneys.

If that approach fails, the opinion suggests that the lawyer “submit only such information as is reasonably necessary to satisfy the needs of the court and preferably by whatever restricted means of submission, such as in camera review under seal, or such other procedures designated to minimize disclosure as the court determines is appropriate.”

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to advise lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.

Formal Opinion 476 and previous ABA ethics opinions are available on the ABA Center for Professional Responsibility website, www.americanbar.org/groups/professional_responsibility.html.