Yeah we scream, yeah we shout ’til we don’t have a voice
In the streets, in the crowds, it ain’t nothing but noise
Drowning out all the dreams of this Tennessee boy
Just tryna be heard in all this noise”
~ Kenny Chesney, Noise
A common inquiry is “Mike, what can I say in my motion to withdraw?” Channeling my inner Calvin Coolidge, I answer “not much.”
Seriously – take heed to avoid what, in the lingo, we call “noisy withdrawal.” That is, don’t impermissibly disclose information relating to the representation of the client when moving to withdraw from the representation.
Before, I outline the analysis, perhaps I’ll pique interest by sharing a real-life example.
It’s the story of a Tennessee lawyer who was publicly censured for disclosing confidential information in a motion to withdraw. Hat tip to Brian Faughnan for sharing the story in a recent post on his blog Faughnan On Ethics. The disciplinary opinion is here.
I’ll return to the opinion in a bit. First, an outline of the relevant rules.
V.R.Pr.C. 1.16 governs withdrawal. Paragraph (a) sets out the situations in which withdrawal is required, while paragraph (b) lists instances in which withdrawal is permitted. Notably, nothing in Rule 1.16 requires or permits a withdrawing lawyer to disclose otherwise confidential information. The rule is limited to withdrawal and the duties that follow the termination of a representation.
In short, the rule on client confidences remains in full effect throughout the withdrawal process.
And that rule is V.R.Pr.C. 1.6. It prohibits lawyers from revealing information relating to the representation of a client. Like the withdrawal rule, it includes exceptions that either mandate or permit disclosure in certain situations. Finally, as regular readers know, a comment to Rule 1.6 makes clear that “information relating to the representation of a client” is much broader than “information that is subject to the attorney-client privilege.”
So, the ethical tap dance becomes complying with Rule 1.16 without violating Rule 1.6. As was my Aunt Mary Ellen in her tap dance studio when I was a kid, Tennessee case is instructive. Here’s a quick summary.
Lawyer represented Client. The professional relationship deteriorated, so Lawyer filed a motion to withdraw. Lawyer included an affidavit in support of the motion. In the affidavit, Lawyer revealed that:
- Lawyer’s employees worry that Client will physically assault them.
- Twice, Lawyer called 911 for police assistance in dealing with Client.
- Client had not paid certain bills.
- Client was often aggressive, threatening, argumentative, and uncooperative.
- Client had recorded conversations with Lawyer
In sum, the affidavit disclosed information relating to Lawyer’s representation of Client. From there, the Tennessee panel was clear:
- Yes, the Lawyer had grounds to move to withdraw pursuant to Rule 1.16.
- However, nothing in Rule 1.16 allowed Lawyer to disclose information protected by Rule 1.6 when moving to withdraw.
- Further, “when the lawyer withdraws” is not an exception to Rule 1.6’s prohibition on disclosing information relating to the representation of a client.
- And, finally, it doesn’t matter whether the information in the affidavit was privileged: Rule 1.6 covers all information relating to teh representation, no matter the source.
Returning to the inquiry I shared at the beginning of this post, here’s the guidance that I typically provide when in a mood to utter more than 2 words.
Cite to the provision of Rule 1.16 that requires or permits withdrawal. That’s it.
Then, there are two situations that would permit (but not require) you to provide more information that is otherwise confidential.
The first is covered by V.R.Pr.C. 1.6(c). A lawyer may comply with a court order to disclose information relating to the representation of a client. To me, that means that if a court orders you to provide more information on your motion to withdraw, you may do so. I recommend treading lightly, disclosing only enough information as is necessary to establish that grounds for withdrawal exist.
The second is set out in Rule 1.6(c)(3) and, in my experience, is less likely to arise. It’s the so-called “self-defense” exception. It allows a lawyer to disclose otherwise confidential information in three situations, including “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” I suppose that a hearing on a motion to withdraw might include the client making allegations about the lawyer’s representation. If so, Rule 1.6(c)(3) would permit the lawyer to respond. Again, the response must be constrained to the allegation.
In closing, and to paraphrase Kenny Chesney, when it comes to disclosing confidential information in a motion to withdraw, you’ll likely find that clients, disciplinary prosecutors, and disciplinary bodies won’t stand for your noise.