California Formal Op. No. 2015-192 Addresses the Ethical Tensions in Mandatory Withdrawal Between Duties to the Court and Duties to Maintain Client Confidences
In Formal Opinion No. 2015-192, the California State Bar Standing Committee on Professional Responsibility and Conduct addressed the difficult choices faced by lawyers who are ethically required to seek leave to withdraw from a matter and who cannot publicly disclose the reasons for withdrawal in light of their duty of confidentiality but who are ordered by the trial court to disclose their reasons to the court on an in camera basis. In its digest, the opinion states that, while the committee "cannot categorically opine on whether or not it is acceptable to disclose client confidences even when faced with an order compelling disclosure, [the] committee does opine that, whatever choices the attorney makes, she must take reasonable steps to minimize the impact of that choice on the client." Although there are portions that are likely to be inapplicable outside of California, the opinion nonetheless provides a good background of the kinds of things that all lawyers may wish to consider when contemplating withdrawal from a matter in litigation.
Withdrawal 101: Sometimes No Confidences are Required
As a general proposition, there are times under both the California Rule of Professional Conduct (CRPC) 3-700 and ABA Model Rule 1.16 (as adopted in most other states) when withdrawal may be either permissive or mandatory. In California as elsewhere, however, the rules typically require court permission before a lawyer may withdraw from a matter that is pending in litigation – especially where, as in the opinion, the client is an artificial entity which can only appear through counsel. The question in all jurisdictions thus becomes what a lawyer seeking to withdraw must, may or must not say to the court if asked why the lawyer wants to withdraw. This question is important because, whether one looks at duties of confidentiality under CRPC 3-100, ABA Model Rule 1.6 or various state statutes regarding confidentiality such as Cal. B&P Code §6068(e)(1) and Cal. Evidence Code §915, there is no carte blanche exception that automatically allows disclosure of anything and everything simply because the lawyer wishes to or even correctly believes he or she is obligated to seek leave to withdraw.
As the opinion notes and as our own experience generally teaches us, most courts will generally accept a simple statement by the lawyer that there is a permissive or mandatory basis for seeking disclosure.1 If a lawyer expects that this will be so, there would appear to be no self-evident need to go further and say more in the course of seeking to withdraw in any jurisdiction. Nonetheless, there will be times when a court may insist upon more.2 The question then becomes how much, if any, further information the lawyer can provide if, after consultation, the client objects to disclosure either in open court or in camera. As noted in footnote 12 of the opinion, the client may well object to any such disclosure since it "will paint [the client] in a bad light to the trial judge."
Withdrawal 102: In Camera Apparently Not an Option in California
In many (if not most) jurisdictions other than California, it is ethically permissible in such situations for a lawyer to offer to provide additional information in camera for review by the court, just as it is common for courts to review documents in camera during discovery in order to determine whether they are privileged or whether privilege may have been waived. In Costco Wholesale Corp. v. Superior Court ((2009) 47 Cal.4th 725), however, the California Supreme Court held that in light of California Evidence Code §915(a), a California state court could not order the production of documents for this purpose. Starting from this proposition, the opinion stated that the same approach necessarily had to be taken with regard to confidential attorney-client communications that would otherwise be responsive to a trial court's request for an explanation why a lawyer believes he or she must or is entitled to withdraw.
In effect, the opinion predicts – and then acts on the assumption – that when a case involving disclosure of confidential information in response to a trial court order on the ground that it is relevant to a motion to withdraw comes before it, the California Supreme Court will hold that the trial court should not have ordered the disclosure, whether in camera or otherwise. The opinion does not, however, balance out the scales by asserting that, if this is so, a lawyer who declines to respond to such a trial court order would not or certainly should not be subject to discipline for violating a court order, or that a lawyer who takes the contrary view and believes that such an order is likely to be enforced will not or certainly should not be subject to discipline for violating client confidentiality. For example, the opinion cautions that California lawyers are potentially subject to sanction under Cal. B&P Code §6103 for "willful disobedience or violation" of a court order.
The opinion correctly notes that it will generally, if not always, be inappropriate for a lawyer to seek to file confidential communications in a declaration or affidavit under seal before the court orders it. If nothing else, this makes sense because, as already noted, courts seem generally predisposed to take attorneys at their word and may, in any event, require less information than the lawyer may otherwise be prepared to provide. Whether it is ethically inappropriate or just unwise, it probably makes sense for lawyers in all jurisdictions not to submit confidential information – in camera or otherwise – unless and until ordered by the court.
California Has No "Obeying a Court Order" Exception
The opinion correctly notes that California does not have either an express or implied "obeying a court order" exception to the duty of confidentiality that is analogous to ABA Model Rule 1.6(b)(6). Thus, and perhaps until the California Supreme Court issues its own opinion on the matter, California lawyers may (or may not) have to risk contempt and seek appellate review (whether by mandamus or otherwise), even though doing so is no more a guarantee against discipline than not doing so. By contrast, and in a state in which a "court order" exception to privilege does exist, a lawyer will presumably be able to invoke that exception in support of disclosure. This does not mean that, in such jurisdictions, a lawyer ethically must disclose rather than running a risk of being held in contempt and seeking appellate review. It only means that in such jurisdictions, a lawyer caught between a client who demands that nothing be disclosed and a court that requires disclosure would appear to have a safe harbor in disclosure.
Court Order to Disclose Client Confidences: Comply or Not? And If So, How?
So what should an attorney seeking a court order authorizing withdrawal do when a California court says "disclose" and the client says "do not disclose"? The opinion correctly points out that, at least in light of the present state of California law, there is no clear safe harbor, but it does not otherwise clearly and unambiguously endorse either disclosure or nondisclosure.
The opinion notes that the lawyer should explore all avenues short of disclosure and may, in order to reduce the risk of client harm, seek to have the matter heard by a judge who will not preside at the trial. In at least some other jurisdictions, seeking out a judge other than the one who will preside at trial is often considered a useful step in addition to in camera filings in order to protect the client. The opinion notes, however, that under the committee's view of California law, seeking out a different judge is no more a safe harbor than filing in camera.
The opinion does not – because it effectively cannot – go further than stating that lawyers must review these situations on a case-by-case basis. All that can be said is that if enough lawyers cite the opinion and its strong emphasis on the duty of confidentiality in aid of refusing to respond to a court order, there might then be a critical mass of cases that would propel this matter to definitive appellate review sooner rather than later.