ABA-519
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| Because lawyers’ Rule 1.6 confidentiality duty applies “to the disclosure of confidential information to the court no less than to others” and there is no ABA Model Rule 1.6 exception that would allow such disclosure by lawyers seeking to terminate a representation in a matter before a court, such lawyers must address limits on disclosure of the termination’s justification. Courts’ handling this situation range from allowing extensive disclosure in open court to disclosure in camera or under seal to discipline for disclosure in withdrawal motions. ABA Model Rule 1.16 cmt [3] encourages courts to allow termination upon a bare-bones explanation “that professional considerations require termination.” Lawyers facing this dilemma may: (1) safely provide personal information, “not related to the representation” (such as the lawyer‘s physical or mental condition justifying termination); (2) secure the client’s informed consent to such disclosure; (3) rely on ABA Model Rule 1.6 (b)(6), which allows disclosure “to comply with other law or a court order;“ (4) occasionally rely on ABA Model Rules 3.3, 1.13 or 1.14 if those circumstances apply. In rare situations when a lawyer faces an insoluble dilemma because the ABA Model Rules prohibit continued representation but the confidentiality duty precludes an explanation, “the duty of confidentiality is paramount” - so such lawyers should not face discipline. Because the Rule “drafters … opted not to carve out an exception to the duty of confidentiality whenever lawyers seek court’s permission to withdraw,” lawyers should: (1) first make a “formulaic reference” to “professional considerations” or “irreconcilable differences;” (2) if that is unsuccessful, seek to persuade the court to allow termination without requiring disclosure of confidential information, (3) comply with any resulting court order by seeking to supply the information in camera or under seal; (4) provide the minimal amount of confidential information required. |