by Krista L. Baughman, a partner of the Dhillon Law Group Inc.
It is an unfortunate truth in business: sometimes, despite best intentions at the outset of a professional relationship, a client and her service provider will need to part ways. These breakups could be due to incompatible communication styles, disagreements about strategy, fee disputes, or a host of other reasons. In most industries, when such issues arise, either party is free to terminate the relationship, walk away, and move on to more fruitful pursuits.
Not always so in the legal profession. Attorneys have an ethical duty to act in the best interests of – and minimize harm to – their clients, and this obligation continues even where the attorney client relationship has fundamentally broken down or the client is not paying the lawyer for his services. And where a client is involved in an ongoing lawsuit and does not expressly consent to her attorney’s withdrawal, the attorney must obtain a judge’s consent before ending the representation. See Cal. Code Civ. Procedure § 284.
On what grounds may an attorney withdraw from representing a client in active litigation, without a client’s consent? California Rules of Professional Conduct, Rule 3-700 lists the specific grounds, including, for example: where the client seeks to pursue an illegal course of conduct, where the client breaches an agreement to pay attorney fees, or where the lawyer’s mental or physical condition renders effective representation unreasonably difficult. To prove to the court that one of these grounds exist, lawyers may be inclined to take a “kitchen sink” approach to withdrawal motions. For example, an attorney may wish to attach to his withdrawal motion some attorney-client emails to demonstrate a breakdown in communication; or a list of outstanding invoices to show nonpayment issues; or a declaration explaining, in his own words, certain client demands that the attorney believes are unreasonable.
This would be a grave mistake and would violate California attorney ethics requirements. Rule 3-700 warns that an attorney “shall not withdraw from employment until [he/she] has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client [and] allowing time for employment of new counsel…”. Further, an attorney must at all times maintain lawyer client confidentiality to protect a client’s confidential information , as required under Rule 3-100(A) and California Business and Professions Code §6068(e). As discussed by the California State Bar’s Standing Committee on Professional Responsibility and Conduct, the duty of attorney-client confidentiality “may prevent or limit an attorney from testifying in detail even about the circumstances of a confidential communication where doing so would disclose client ‘confidences’ or ‘secrets.’” Formal Opinion No. 2015-192 (emphasis added).
As such, a withdrawing attorney faces a difficult dilemma: he must disclose enough information to convince a court of the need to withdraw, without sharing any information that is confidential or may prejudice the client. Recognizing this sticky situation, California’s professional ethics Standing Committee has opined that “ordinarily it will be sufficient [for an attorney] to say only words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney-client relationship.” Formal Opinion No. 2015-192. See also Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 591 (holding “[w]here as here the duty not to reveal confidences prevented counsel from further disclosure and the court accepted the good faith of counsel’s representations, the court should find the conflict sufficiently established and permit withdrawal.”) These rules have a counterpart in the American Bar Association’s Model Rules, Rule 1.16, which states that “[t]he lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.”
Could an attorney provide more detail to the court while also satisfying his ethical obligations by submitting confidential client information directly to the judge’s private chambers (“in camera”), so that the opposing side and the public cannot see it? The answer is still no: attorneys are prohibited from revealing attorney client privileged communication, even during an “in camera” hearing. See Formal Opinion at p. 6. This remains the case even where a court orders an “in camera” filing, and under those circumstances the ethics Standing Committee advises that an attorney request that his withdrawal motion be transferred to another judge, in order to prevent prejudice to the client that may otherwise arise if the trial judge (e.g. the one to decide/ preside over the merits of the case) were to assess the privileged information. Id. at pp. 9-10.
If an attorney’s withdrawal motion is ultimately denied, the attorney must avail himself of other avenues, such as appeal or other further review of a court’s order. See Formal Opinion No. 2015-192. Once these alternative avenues have been exhausted, the attorney must “evaluate for herself the relevant legal authorities and the particular circumstances…and reach her own conclusion on how to proceed,” while at all times keeping in time the impact of her choice on the client. Id.
Simply put, duties of a lawyer to his client must be forefront in his mind during any attempt to terminate a client relationship, regardless of how justified a withdrawal may be. Striking an ethical balance between competing obligations and goals may be difficult for the attorney, but is required under California law to ensure client protection at all stages of a representation.