ETH 2015-192 Formal Opinion No. 2015-192 California Ethics Opinions
State Bar of California Standing Committee on Professional Responsibility and Conduct February 12, 2015 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? DIGEST:
An attorney may disclose to the court only as much as is reasonably necessary to demonstrate her need to withdraw, and ordinarily it will be sufficient 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. In attempting to demonstrate to the court her need to withdraw, an attorney may not disclose confidential communications with the client, either in open court or in camera. To the extent the court orders an attorney to disclose confidential information, the attorney faces a dilemma in that she may not be able to comply with both the duty to maintain client confidences and the duty to obey court orders. Once an attorney has exhausted reasonable avenues of appeal or other further review of such an order, the attorney must evaluate for herself the relevant legal authorities and the particular circumstances, including the potential prejudice to the client, and reach her own conclusion on how to proceed. Although this Committee cannot categorically opine on whether or not it is acceptable to disclose client confidences even when faced with an order compelling disclosure, this Committee does opine that, whatever choice the attorney makes, she must take reasonable steps to minimize the impact of that choice on the client. AUTHORITIES INTERPRETED:
Rules 3-100 and 3-700 of the Rules of Professional Conduct of the State Bar of California.
Business and Professions Code sections 6068(b), 6068(e)(1), and 6103. STATEMENT OF FACTS
CEO is the Chief Executive Officer of Client, a closely held corporation. Client hired Attorney to prosecute a trade secret misappropriation case against a former employee of Client who left Client to join Client's primary competitor ("Competitor"). Near the close of discovery, about six weeks before trial, Attorney learns some information that causes her to conclude Client's claim lacks probable cause. Attorney meets with CEO to discuss this new information and advises CEO that Client should dismiss the claim, and that Attorney may not ethically continue to prosecute the claim for Client. CEO tells Attorney he does not want to do anything until the day before trial at the earliest because that is the date of a big trade show in which Client and Competitor both will be participating. CEO further tells Attorney that he does not really care about winning or losing the lawsuit, but that he merely wants to keep the lawsuit going in order to damage Competitor's public image leading up to the trade show. Attorney advises CEO she cannot continue to represent Client in a lawsuit in which the Client's position lacks probable cause and the primary purpose is to harass or maliciously injure another person or company. Under such circumstances, Attorney tells CEO, she would have a mandatory duty to withdraw from the representation. CEO becomes angry and says, "I am paying you a lot of money, and I expect you to do what I say." Attorney leaves the meeting and says she will call CEO the next day after they both have slept on the issue. The next day, Attorney phones CEO and asks him if he has reconsidered whether to continue prosecuting the case. Again, CEO becomes angry and says he does not want to hear another word about dropping the case until after the trade show. Attorney then informs CEO that she will need to withdraw from the representation, and asks CEO if Client will consent to the withdrawal. CEO refuses to consent, saying he would not be able to find another lawyer this close to trial. Attorney immediately begins drafting a motion to withdraw, which she convinces the court to hear on shortened time. In the moving papers, Attorney states, "Ethical considerations require my withdrawal as counsel for Client." Client appears at the hearing to oppose Attorney's motion. The judge asks Attorney to explain the reason for her need to withdraw. The following colloquy ensues:
Attorney: My duty of confidentiality to Client prevents me from saying more.
Judge: I'm concerned about potential prejudice to Client, so you'll have to give me a little more information.
Attorney: Your Honor, I have an irreconcilable conflict of interest with Client that precludes my continued representation. My duty of confidentiality to Client prevents me from saying any more.
Judge: Here is what we are going to do. You are ordered to provide me a detailed declaration, filed under seal, about what your client said to you that makes you think you need to withdraw. Then, one week from today you will appear in my chambers for an in camera hearing to discuss the declaration. DISCUSSION
The Statement of Facts raises several issues and pits certain ethical duties of Attorney directly against her other ethical duties. First, to the extent Attorney knows or should know - as is apparent from the Statement of Facts - that Client is pursuing the lawsuit "for the purpose of harassing or maliciously injuring any person," Attorney has a mandatory duty to withdraw.
Rule 3-700(B)(l). Second, in seeking to withdraw, Attorney must take reasonable steps to avoid reasonably foreseeable prejudice to Client's rights, pursuant to rule 3-700(A)(2). Third, in asking the court for permission to withdraw, Attorney must continue to uphold her duty of confidentiality under rule 3-100 and Business and Professions Code section 6068(e)(1). 1. Duty To Withdraw
Rule 3-700(B)(1) provides that withdrawal is mandatory where, "[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." Rule 3-700(B)(2) provides that withdrawal is mandatory where, "[t]he member knows or should know that continued employment will result in violation of these rules or of the State Bar Act." Thus, in light of the Statement of Facts, Attorney correctly concluded that she had a mandatory duty to withdraw.
Rule 3-700(A)(2), however, provides in part 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, including giving due notice to the client, [and] allowing time for employment of other counsel . . . ." See also Ramirez v. Sturdevant
(1994) 21 Cal.App.4th 904, 915 [26 Cal.Rptr.2d 554] ("A lawyer violates his or her ethical mandate by abandoning
a client [citation], or by withdrawing at a critical point and thereby prejudicing the client's case." (Original italics)); see also In the Matter of Riley
(Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 91, 115 (finding that attorney's duties to client continue until a substitution of counsel is filed or the court grants leave to withdraw); Cal. State Bar Formal Opn. No. 1994-134 (discussing duty to provide competent representation pending court determination on issue of withdrawal). Moreover, notwithstanding Attorney's ethical obligation to withdraw - and how she may weigh her need to withdraw against any prejudice to Client - Attorney may not withdraw absent either client consent or a court order. (Code Civ. Proa, § 284; rule 3-700(A)(l).) Here, both Client and the court have raised concerns about potential prejudice to Client should Attorney withdraw. In particular, trial is only six weeks away, and it is unclear whether Client will be able to obtain substitute counsel.
Thus, Attorney's duty to withdraw appears to clash with her separate duty to ensure that Client suffers no prejudice as a result of her withdrawal. Ultimately, it will be the court that weighs Attorney's duty to withdraw against prejudice to Client. See Mandell v. Superior Court
(1977) 67 Cal.App.3d 1, 4 [136 Cal.Rptr. 354]. Attorney, however, must take reasonable steps to convince the court of her need to withdraw, all the while taking reasonable steps to minimize the prejudice to Client and to maintain her duty of confidentiality under rule 3-100(A) and Business and Professions Code section 6068(e)(1). 2. Duty of Confidentiality
One of the most important duties of an attorney is to preserve the confidences of her client. "No rule in the ethics of the legal profession is better established nor more rigorously enforced than this one." Wutchumna Water Co. v. Bailey
(1932) 216 Cal. 564, 572 [15 P.2d 505]. Business and Professions Code section 6068(e)(1) requires an attorney "[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Rule 3-100(A) provides, "A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client. . ." except under certain limited exceptions not applicable here. An attorney moving to withdraw from representation faces a difficult dilemma - how to present sufficient facts to enable the court to consider the motion, while still maintaining the client's confidences.
See California Rules of Court, rule 3.1362(c) (requiring party moving to withdraw to file a declaration stating "in general terms and without compromising the confidentiality of the attorney-client relationship why a motion" is necessary). In Aceves v.