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March 30, 2018

Client Confidentiality When Withdrawing – How to Avoid a Catch 22

by contributor
Female lawyer walking a tightrope
Lawyers sometimes call the WSBA Ethics Line asking how they can file a motion to withdraw and also maintain client confidentiality.

Lawyers sometimes call the WSBA Ethics Line (800-945-9722, ext. 8282) asking how they can file a motion to withdraw and also maintain client confidentiality. Fortunately, there’s a 2017 Advisory Opinion that walks you through it. While this blog provides a quick review, be sure to read the rules and their comments in their entirety.

Withdrawal may be appropriate in many scenarios, such as when a client has used their lawyer’s services to perpetuate a crime or when an attorney can’t contact their client. For more on the latter, read my earlier post, What to Do When You Can’t Find Your Client. RPC 1.16 states that a lawyer shall reveal no information relating to the representation unless the client gives informed consent. Since the basis for the motion to withdraw is itself confidential information, lawyers find themselves in a bind when they can’t obtain client consent to disclosure but need to frame their motion to withdraw.

How do you withdraw without telling the court why you need to do so? The golden ticket is to state that professional considerations require you to withdraw. Comment 3 to RPC 1.16 highlights that this statement should ordinarily be accepted by the court “as sufficient.” Advisory Opinion 201701 clarifies that a lawyer may make statements similar to “professional considerations” as long as they do not disclose the particular reasons for withdrawal.

A lawyer may provide further information on camera and under seal if ordered to do so by the court. RPC 1.6 (b)(6) allows an attorney to reveal confidential information to comply with a court order. In that event, the attorney must assert on behalf of the client all nonfrivolous claims that the information is protected (see Comment 15 to RPC 1.5). If the client is in the picture and wants to appeal, the lawyer should make no further disclosures until the appellate process runs its course.

The ABA published a very helpful Formal Opinion 476 Confidentiality Issues when Moving to Withdraw for Nonpayment of Fees in Civil Litigation in December 2016.

If you have further questions or concerns, feel free to contact the WSBA Ethics Line at 800-945-9722, ext. 8284.

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