by Lauren J. Blaes and Michael D. Stewart
The issues that lead a lawyer to withdraw from a matter are often the same issues that can lead to litigation or other disputes with the client. An improper withdrawal can simply accelerate and exacerbate the risk of things going sideways with the client. As discussed below, the key elements of a proper withdrawal from litigation are: having an appropriate basis under the ethical rules; complying with any relevant court rules; and avoiding prejudice to the client (e.g., by not revealing confidential/unsavory facts about the client and timing the withdrawal so that the client is not left in a lurch). It is this last factor that is often the most important risk management step because a prejudiced client can result in a client with a claim. In fact, because many withdrawals are precipitated by a client’s failure to pay fees, a poorly handled withdrawal can provide the soon-to-be-former client with a potential defense or offset to payment of those very fees, if not worse.
Rule 1.16 of the California Rules of Professional Conduct sets forth the various circumstances when a lawyer is required to withdraw, as well as the circumstances where a lawyer is permitted to withdraw. For example, lawyers are required to withdraw when their client demands that they assert a frivolous claim or when the representation will otherwise violate the Rules of Professional Conduct. See Cal. Rules of Prof’l Conduct R. 1.16(a)(1) and 3.1. An even more clear-cut case requiring withdrawal is when the client has terminated the representation. See Cal. Rules of Prof’l Conduct R. 1.16(a)(4); see also Cal. Bus. & Prof. Code § 6104 (“Corruptly or willfully and without authority appearing as attorney for a party to an action or proceeding constitutes a cause for disbarment or suspension.”).
More common are situations when withdrawal is at the lawyer’s discretion. For example, a lawyer may withdraw if “the client breaches a material term of an agreement” (e.g., fails to pay the lawyer’s invoices), but only if the client has been given “reasonable warning” that the lawyer will withdraw unless the obligation is fulfilled. See Cal. Rules of Prof’l Conduct R. 1.16(b)(5); but see California Central District Rule 83-2.3.2 (“Failure of the client to pay agreed compensation is not necessarily sufficient to establish good cause.”). Other situations permitting withdrawal include, for example: (1) where the client insists on action that the lawyer believes is criminal or fraudulent, (2) certain instances where the lawyer has an inability to work with co-counsel, (3) the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively, or (4) more generally, where the lawyer believes in good faith that the court or other tribunal will find other good cause for withdrawal. See Cal. Rules of Prof’l Conduct R. 1.16(b)(1)-(10).
A lawyer whose representation of the client is not before a tribunal still needs to satisfy the mandatory or permissive grounds for withdrawal, but unlike the litigator, does not need to obtain permission from a tribunal. See Cal. Rules of Prof’l Conduct R. 1.16(c). In some circumstances, the court may refuse to allow withdrawal even though the lawyer is facing a seemingly “mandatory” withdrawal situation. For example, if the court denies a lawyer permission to withdraw, the lawyer is obligated to comply with that order “even if the lawyer sought permission to withdraw because of a conflict of interest.” See Cal. Rules of Prof’l Conduct R. 1.16, cmt. 4. In addition, the specific rules and requirements surrounding withdrawal vary from court to court, and some requirements are not obvious. The U.S. District Court, Central District of California, for example, specifically requires counsel to inform organizational clients of the client’s inability to appear pro se. See U.S.D.C. (Cal. C.D.) L.R. 83-2.3.4. In state court, some California lawyers fail to remember that their motion to withdraw must be filed using the Judicial Council forms required by California Rules of Court, Rule 3.1362. The filing must include the motion (with the noticed hearing date), a declaration attesting to the reasons for the withdrawal as well as to service of the motion on the client and all upcoming hearing dates, and a proposed order, all of which are Judicial Council forms. Notably, the motion and accompanying documents must be served not only on all parties, but also on the client, and the declaration supporting the motion must provide facts attesting to efforts to confirm the address of the client.
Though this may seem like a straightforward process, a predicament arises given that lawyers have a duty of confidentiality to their clients. Thus, a careful balancing act ensues between providing the court with sufficient information to justify the withdrawal while still maintaining client confidences. Importantly, even when lawyers are seeking to withdraw they are still bound by the duty of confidentiality. See Cal. Rules of Prof’l Conduct R. 1.6; Cal. Bus. & Prof. Code § 6068(e). Because the broad duty of confidentiality continues even through the motion to withdraw process, lawyers must tread lightly with the information disclosed in their motion and limit what is ultimately shared. Indeed, there are multiple published decisions where lawyers have found themselves in hot water for not sufficiently maintaining such client confidences in the withdrawal process and oversharing.
As an example, a motion to be relieved may state that the specific facts giving rise to the motion are confidential and that, without waiving such client confidences, irreconcilable differences have arisen resulting in a breakdown of the attorney-client relationship. See Page v. Stanley, No. 2:11–cv–02255–CAS(SSx), 2014 WL 2472248 (C.D. Cal. June 2, 2014) (finding withdrawal appropriate where counsel asserted “a breakdown in attorney-client communications” and that it had become “unreasonably difficult” to continue to represent the client); Manfredi & Levine v. Superior Court, 66 Cal. App. 4th 1128, 1135 (1998) (a conflict of interest is present when “there has been an irreparable breakdown of the working relationship between counsel and client”). In fact, the ABA Model Rules suggest that the motion need only cite the relevant rule justifying the attorney’s withdrawal and state that professional considerations require withdrawal. See ABA Model Rules of Prof’l Conduct R. 1.16, cmt. 3 (“The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient.”).
As reflected in California State Bar Formal Opinion 1993-133:
[c]lient secrets means any information obtained by the lawyer during the professional relationship, or relating to the representation, which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client. (See Cal. State Bar Formal Opn. Nos. 1980-52 and 1981-58.) Hence, the attorney’s duty to maintain client confidences and secrets inviolate is broader in scope than the attorney-client privilege.
Looking more broadly at other jurisdictions, there are many published decisions finding fault with the lawyer who said too much in their motion to withdraw. See, e.g., People v. Waters, 438 P.3d 753, 761 (Colo. 2019) (disciplining lawyer who disclosed client confidences out of frustration); In re Ponds, 876 A.2d 636, 637 (D.C. 2005) (censuring lawyer for disclosing confidential information in a motion to withdraw); In re Gonzalez, 773 A.2d 1026, 1029-32 (D.C. 2001) (admonishing lawyer who revealed that his clients had stopped paying, failed to cooperate in preparing for trial, missed several appointments, and had misrepresented facts); Attorney Grievance Comm’n of Md. v. Smith-Scott, 230 A.3d 30, 69 (Md. 2020) (concluding that lawyer violated her duty of confidentiality when she attached email exchanges with the client to support withdrawal); Cleveland Metro. Bar Ass’n v. Heben, 81 N.E.3d 469, 471-72 (Ohio 2017) (disciplining a lawyer who revealed attorney-client communications about the scope of the representation, accused the client of failing to pay his fees, and disclosed legal advice he had provided about the client’s potentially illegal conduct); Lawyer Disciplinary Bd. v. Farber, 488 S.E.2d 460, 466 (W. Va. 1997) (suspending a lawyer who attached an affidavit to a motion to withdraw that accused the client of improper conduct).
If the lawyer suspects that the court may require further information based on past experience with the particular judge or the procedural posture of the case (e.g., there have already been numerous changes to counsel, the case is close to trial or a significant motion, etc.), the attorney may also use the motion to request that, if necessary, any further information requested by the court be provided in an in camera hearing outside the presence of all other parties. See Manfredi, 66 Cal. App. 4th at 1136-37. In fact, as a matter of course, it may be best to preemptively address this potential issue by putting the request for an in camera hearing in the motion so that the court is prepared for such a request. In some cases, the court may then reserve the withdrawal hearing for the last matter on the docket.
Final Remarks As discussed above, there are many valid reasons why a lawyer may seek to withdraw from a case. However, at the end of the day, if an attorney-client relationship goes sour or a situation otherwise arises requiring or permitting withdrawal, we have a duty to take measures to prevent prejudice to the client, including by protecting confidential client information, both in the filed motion and at the hearing. Lawyers should err on the side of caution as to what is shared with the court and say only as much as is necessary to substantiate the withdrawal—which, in many cases, can be as simple as a statement that there are professional considerations requiring withdrawal. Going beyond that may help get you out of the case, but may also give the client a reason to be mad at you, a reason to never pay you, or even a reason to sue you.
Lauren J. Blaes is an Associate of Sheppard, Mullin, Richter & Hampton LLP in Costa Mesa, California. She can be reached at lblaes@sheppardmullin.com. Michael D. Stewart is General Counsel of Sheppard, Mullin, Richter & Hampton LLP in Costa Mesa, California. He is also a member of the OCBA’s Professionalism & Ethics Committee. He can be reached at mstewart@sheppardmullin.com. The views expressed herein are their own.