by Mary A. Dannelley
Attorneys who move to withdraw as counsel face an ethical dilemma. While an attorney must establish that proper grounds exist to grant a motion to withdraw under Rule 3-700 of the California Rules of Professional Conduct, the attorney faces competing ethical obligations not to reveal client confidential information under Rule 3-100, or otherwise fail to take reasonable steps to avoid prejudicing the rights of the client under Rule 3-700. How does an attorney provide information to satisfy the court that proper grounds exist to grant a motion to withdraw without compromising client confidences or the client’s position in a pending litigation? In a recent 2015 opinion, the Standing Committee on Professional Responsibility and Conduct of the California State Bar (COPRAC) provided guidance on this issue. Cal. State Bar Formal Op. No. 2015-192. The opinion is helpful to attorneys and tribunals alike, as it not only opines on what information an attorney may reveal, but also on what information a court should accept or require in support of a motion to withdraw.
Grounds for Withdrawal Rule 3-700(B) mandates withdrawal from representation of a client if “[t]he member knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person” or “[t]he member knows or should know that continued employment will result in violation of these rules or of the State Bar Act.” Cal. R. Prof. Conduct 3-700(B). Rule 3-700(C) sets forth the grounds for permissive withdrawal from representing a client, which include: (a) the client insists upon pursuing claims or defenses not warranted under existing law or supported by a good faith argument for the modification of existing law; (b) the client insists upon pursuing a course of conduct that is illegal or prohibited under the Rules of Professional Conduct or State Bar Act; and (c) the client engages in other conduct that renders it unreasonably difficult to carry out the employment effectively. Cal. R. Prof. Conduct 3-700(C).
The Lawyer’s Predicament Rule 3-700(A)(1) and California Code of Civil Procedure Section 284 make clear that, absent client consent, an attorney may not withdraw from representing a client without a court order granting permission to withdraw. Cal. Civ. Proc. Code § 284; Cal. R. Prof. Conduct 3-700(A)(1). Thus, in the absence of the client’s permission to withdraw, an attorney must file a motion supported by facts demonstrating the grounds to withdraw under Rule 3-700. Certainly, the requirement of a court order exists to protect the client from prejudice, and Rule 3-700(A)(2) makes clear that “[a] member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client ... .” Cal. R. Prof. Conduct 3-700(A)(2). Likewise, in setting forth facts in support of the motion, an attorney must bear in mind the duty of confidentiality, which an attorney is ethically obligated to preserve “at every peril to himself or herself.” Cal. R. Prof. Conduct 3-100(A) (“A member may not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without informed consent of the client, or as provided in paragraph (B) of this rule.”); Cal. Bus. & Prof. Code § 6068(e)(1). CORAC’s Formal Op. No. 2015-192 addressed the potential dilemma an attorney faces when filing a motion to withdraw and opined on the following issue: “What information may an attorney ethically disclose to the court to explain her need to withdraw from a representation—particularly in the face of an order to submit to the court, in camera or otherwise, the substance of the attorney-client communications leading to the need to withdraw?” Cal. State Bar Formal Op. No. 2015-192, at 1.
No Disclosure of Confidential Information in a Declaration or Open Court In State Bar Opinion No. 2015-192, COPRAC posed a hypothetical in which an attorney learns, on the eve of trial, of information that leads her to conclude that her client’s case lacks merit. The client insists the attorney continue to prosecute the case for ulterior motives at least until the day before trial, notwithstanding the attorney’s position that she cannot continue to do so ethically. Despite the client’s insistence that the attorney continue representation, the attorney concludes she has a mandatory duty to withdraw. The hypothetical presents an ethical predicament because the attorney must provide a declaration sufficient to satisfy the court that there exist grounds to withdraw, but cannot do so in a way that compromises her client’s position or otherwise reveals client confidences.
Analyzing the competing obligations of attorneys summarized above, COPRAC unequivocally opined that an attorney may not reveal client confidential information, including attorney-client communications, in support of a motion to withdraw. In reaching this conclusion, COPRAC adopted the reasoning in Aceves v. Superior Court, 51 Cal. App. 4th 584 (1996), in which the court of appeal reversed a trial court’s denial of a motion to withdraw based on the attorney’s declaration representing that there had been “a ‘complete, utter and absolute’ breakdown in the attorney-client relationship.” Cal. State Bar Formal Op. No. 2015-192, at 4 (citing Aceves, 51 Cal. App. 4th at 588). As noted in COPRAC’s Opinion, the Aceves court concluded that where providing further information would compromise client confidences, a trial court should accept an attorney’s representation that there had been a breakdown in the attorney-client relationship to support the request to withdraw, absent some indication that the attorney’s representation lacks sincerity. Id. (citing Aceves, 51 Cal. App. 4th at 592, 594). Thus, COPRAC concluded that an attorney may not reveal client confidential information in support of a motion to withdraw and should file, instead, a declaration stating, in general terms, the grounds for the motion without compromising confidentiality. Id. at 4-5 (citing ABA Model Rule 1.16, Comment 3); see also Cal. R. Ct. 3.1362(c). COPRAC concluded that “[o]rdinarily, for purposes of the motion to withdraw, it will be sufficient to state words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney-client relationship.” Cal. State Bar Formal Op. No. 2015-192, at 10.
No In Camera Disclosure The notion that an attorney cannot reveal client confidential information in a declaration in support of a motion to withdraw is not an earth-shattering revelation, especially given Rule 3.1362(c) of the California Rules of Court, which provides that the declaration in support of a motion to be relieved as counsel “must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).” Cal. R. Ct. 3.1362(c). However, many attorneys may believe that, in the event more information is required, he or she may request an in camera hearing in order to preserve the privilege while providing the necessary information to the court. As noted by COPRAC, two California cases appear to suggest that an attorney should indeed request an in camera hearing in the event a court does not accept the attorney’s declaration at face value.
First, in Manfredi & Levine v. Superior Court, 66 Cal. App. 4th 1128 (1998), an attorney invoked client confidentiality and declined to provide further information to the court to substantiate a conflict. Id. at 1131. The court of appeal noted that the attorney could have provided information to the court in camera without breaching his ethical duties, stating:
Manfredi could have requested an in camera hearing. This would have afforded the opportunity to furnish details on the claim of conflict and to provide the court with sufficient information as to why the law firm could not continue to represent the Barleses. An in camera hearing might also have allowed the Barleses to elaborate upon their concern that if the motion were granted they effectively would be left without assistance of counsel. The general rule is that a trial court does not have a sua sponte duty to offer to hear motions in camera.
COPRAC dispelled the notion that in camera review gives an attorney carte blanche to reveal confidential information in order to persuade a court to grant a motion to withdraw as counsel. Id. COPRAC relied upon California Evidence Code Section 915(a) and Costco Wholesale Corp. v. Superior Court, 47 Cal. 4th 725 (2009), in support of this conclusion. California Evidence Code Section 915(a) provides that “the presiding officer may not require disclosure of information claimed to be privileged under this division or attorney work product under subdivision (a) of Section 2018.030 of the Code of Civil Procedure in order to rule on the claim of privilege.” Cal. Evid. Code §915(a). In Costco, the California Supreme Court confirmed that California Evidence Code Section 915(a) “prohibits a court from ordering in camera review of information claimed to be privileged in order to rule on the claim of privilege.” Costco, 47 Cal. 4th at 739 (cited in Cal. State Bar Formal Op. No. 2015-192, at 6). Based on the holding in Costco, COPRAC opined that an attorney is equally prohibited by the ethical rules from disclosing privileged information in camera in support of a motion to be relieved as counsel. Cal. State Bar Formal Op. No. 2015-192, at 6.
COPRAC provided guidance on what an attorney can do if a court requires information beyond the general information provided in a declaration in support of a motion to be relieved as counsel, as well as what a tribunal may require of an attorney. Relying on Costco, COPRAC clarified that Evidence Code Section 915(a) does not prohibit an attorney from providing other information, besides the substance of an attorney-client privileged communication itself, to permit the court to evaluate the basis for the claim. Id. Presumably, this means that if the court questions an attorney’s assertion that revealing additional information would constitute a breach of his or her ethical duty of confidentiality to the client, the attorney may disclose additional non-privileged information to the court, including sufficient information regarding the circumstance surrounding the communications to establish the claim of privilege, without divulging the substance of any communications or client confidential information itself.
Handling Court-Ordered Disclosure An attorney faces a further dilemma if a court orders disclosure of client confidential information in order to determine a motion to be relieved as counsel because such an order would require an attorney to choose between “the important and conflicting obligations of protecting [a c]lient’s confidential information and obeying a court order,” as required under California Business & Professions Code section 6103. Cal. State Bar Formal Op. No. 2015-192, at 6. COPRAC declined to render a categorical opinion about how an attorney should respond to an order compelling disclosure of confidential information, stating: “[g]iven that the two duties are central to an attorney’s ethical obligations, it is this Committee’s view that there is no one rule that should apply in every situation.” Id. at 7. COPRAC indicated that an attorney “must exhaust all reasonable efforts before concluding that the only options remaining are disclosing confidential information or disobeying a court order.” Id. at 9. Such efforts should include (a) “seek[ing] appropriate relief from the court’s order, including filing a writ petition” and (b) “tak[ing] reasonable steps to avoid prejudice to the client,” which may include requesting that any disclosures in compliance with such an order be made to a judge pro tem in lieu of the trial judge. Id. at 10.
Conclusion COPRAC ultimately concluded, “an attorney may not disclose confidential communications with the client, either in open court or in camera.” Cal. State Bar Formal Op. No. 2015-192, at 1, 10. If the circumstances supporting a motion to be relieved as counsel would require disclosure of client confidential information in violation of Rule 3-100, an attorney should file a declaration stating, in general terms, that “ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney-client relationship.” Id. at 10. In addition, in the event a court requires further information, the attorney should invoke the attorney-client privilege and provide sufficient facts to support the claim of privilege without divulging the substance of any attorney-client communications. An in camera hearing does not absolve an attorney from protecting privileged information, and, under Evidence Code Section 915(a) and Costco, courts are precluded from ordering the disclosure of privileged information in camera in order to rule on a claim of privilege. Finally, in the event a court orders the disclosure of information, an attorney must take all reasonable steps to avoid the nearly impossible choice between breaching a client’s confidence and disobeying a court order, even if the attorney believes the order to be invalid, including filing a writ petition.
Mary A. Dannelley is a sole practitioner in Newport Beach, California. Ms. Dannelley practices in the areas of commercial and employment litigation. She also provides employment counseling to employers and conducts independent workplace investigations. Ms. Dannelley can be reached at mary@dannelleylaw.com.