Everyone wants to be paid for their services. If a lawyer has a client who has fallen behind in payments, and future payment does not appear to be forthcoming, a lawyer may try to withdraw from the representation. If you withdraw, how much information should you share about the reason for your withdrawal?
Consider the following scenario. The answer can be found at the bottom.
Alan represents The Client in a breach of contract case. The Client is always late for meetings; does not return Alan’s calls for days; and currently owes Alan $35,000. Alan has discussed these issues with The Client during the course of the representation. The Client always promises to do better and to send payment; but nothing really changes. Finally, Alan sends The Client a stern letter advising The Client if The Client doesn’t pay the outstanding bill, Alan will withdraw. When Client still fails to make any payments, Alan files a Motion to Withdraw.
In the motion, Alan explains that he cannot continue with the representation because The Client is impossible to work with. Alan itemized how many times The Client missed a meeting; and how many times The Client failed to return his phone calls. Alan also explained that The Client owed him $35,000 and that he grew tired of The Client’s false promises to make payment. Finally, Alan explained in the motion that The Client had not been truthful with him about certain aspects of the case.
The Client was so angry upon receipt of the motion that The Client filed a complaint with the disciplinary agency.
Did Alan potentially violate his ethical duties to Client?
(a) Yes. Alan shared too much information in the Motion to Withdraw.
(b) No. Alan had to provide all those facts in order to support the Motion to Withdraw.
We’ll give you a few ticks of the clock to come up with your answer.
The correct answer is A.
This case is loosely based on the case In re Gonzalez, 773 A.2d 1026 (D.C. 2001), where the lawyer was given an informal admonition – not for informing the court that fees were owed by the client, but for also disclosing extraneous and embarrassing client information in connection with the motion.
ABA Formal Opinion 476 explains that lawyers who seek to withdraw in civil cases for nonpayment must be careful not to violate their duty of confidentiality under Rule 1.6. Alan essentially ignored his duties under Rule 1.6, and disclosed confidential information about The Client. His attack on The Client may very well jeopardize Client’s case.
While Alan may have believed he had to provide the history of his relationship with The Client, he could have, as was stated in the Gonzalez case, “provided to the [Circuit] Court in camera, so that the [Circuit] Court could be satisfied that the motion had a factual foundation, without harm to the client’s interests.”
Notably, ABA Formal Opinion 476 also provides guidance to judges stating that a “judge should not require the disclosure of confidential client information without considering whether such information is necessary to reach a sound decision on the motion.”
Always check the ethics rules and case law in your jurisdiction!