Ethics Opinion

Opinion No. 96-3

March 1996

Summary: A lawyer seeking to withdraw from a pending court matter because of the client's repeated failure to pay his fee may reveal confidences and secrets of the client in connection with the motion, but only the minimum needed to support the motion, and should take other appropriate steps to prevent the spread of the confidential information.

Facts: A lawyer wishes to seek a court's permission to withdraw from a matter that is pending before it. The lawyer inquires whether DR 4-101 prevents him from filing an affidavit that details a client's repeated failure to pay his fee despite promises to do so, including his giving the lawyer checks that have been dishonored for insufficient funds. The lawyer will file a motion to impound the affidavit and has already secured opposing counsel's consent to this motion.
Discussion: DR 2-110(C) provides that a lawyer may seek permission to withdraw from a matter pending before a tribunal on the ground that "(1) His client...[d]eliberately disregards an agreement or obligation to the lawyer as to expenses or fees." In giving the lawyer permission to request a court for permission to withdraw on the stated ground, the Rule requires a lawyer to establish the factual basis to the satisfaction of the court. That implicitly permits the lawyer to reveal some information relating to nonpayment of the fee that might otherwise be confidential in much the same way as DR 4-101(C)(4) permits a lawyer to reveal confidential information in order to collect or establish his fee. The lawyer in both circumstances should reveal the minimum amount of confidential information to achieve his objective. The lawyer should also take other steps, as lawyer has done in his motion, to prevent the spread of the confidential information.
We should note that in 8 Mass. Att'y Discipline Reports 328 (1992), there is a summary of the Board of Bar Overseer's Private Reprimand No. PR-92-34. An attorney sought to withdraw from representation of a defendant in a criminal case. He attached to his motion a letter that the client had written to a television program complaining about the lawyer's handling of his case. Subsequently, the client did not appear for trial but he then wrote letters to the television station and the lawyer, complaining about the lawyer but acknowledging that the lawyer had given him the correct trial date. The lawyer forwarded those letters to the court, which used them against the defendant when he later tried to defend against arrest on a default warrant by stating that he had forgotten the trial date.
The summary report did not discuss DR 2-110(C) or DR 4-101(C)(4), which allows a lawyer to reveal confidences in self-defense, but it stated that the lawyer had been found to have violated "DR 4-101(B)(1) and (2) (revealing confidences or secrets of his client and using a confidence or secret to the client's disadvantage), ...DR 7-101(A)(3) (prejudice or damage a client during the course of a professional relationship); and...DR 1-102(A)(5) and (6) (conduct prejudicial to the administration of justice and conduct that reflects adversely on his fitness to practice law)."
Without any opinion, it is difficult to know exactly what aspects of the lawyer's conduct were the basis for the Board's conclusion. In the face of DR 2-110 and DR 4-101(C)(4), it is difficult to believe that the Board meant to hold that a lawyer may never reveal any confidence or secret in connection with a motion for withdrawal. The summary noted that the lawyer had not told the client that he was going to be attaching the client's letters to his motion and did not have the client's consent to do so. It did not say whether the Board had found those failures to be crucial. See our Opinion 96-4 where we discuss the obligation of a lawyer to seek the client's consent in situations like this one. It may be that the Board merely concluded that the lawyer had revealed far more confidences and secrets than were necessary to support his motion for withdrawal. In our view, the reprimand serves as a caution to lawyers when seeking to withdraw but should not be understood as preventing revelations necessary to support such a motion.

Permission to publish granted by the Board of Delegates on November 12, 1996. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.