Massachusetts divorce lawyer Jason V. Owens reviews how informed consent rules under the Massachusetts Rules of Professional Conduct can affect Motions to Withdraw.
Among the least appetizing court appearances that an attorney must make is a motion to withdraw his or her representation from a client’s case. Massachusetts Rules of Professional Conduct Rule 1.16 provides the many situations in which an attorney may or must withdraw his or her appearance including. Under Rule 1.16 (a), the attorney must withdraw if:
- the representation will result in violation of the rules of professional conduct or other law;
- the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
- the lawyer is discharged.
However, Rule 1.16 (c) further provides, “[i]f permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.” Generally speaking, an attorney must obtain a court’s permission to withdraw from most forms of active litigation. Accordingly, the attorney who must withdraw his or her representation pursuant to Rule 1.16 (a) must also obtain the permission of the court to withdraw pursuant to Rule 1.16 (c).
Rule 1.16 (b) also lists the many circumstances in which an attorney may seek to withdraw his or her representation:
- the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
- the client has used the lawyer’s services to perpetrate a crime or fraud;
- a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
- the client fails substantially to fulfil an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
- the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
- other good cause for withdrawal exists.
Like the scenarios that absolutely require an attorney to withdraw, withdrawing under Rule 1.16 (b) also requires permission from the court. Regarding “optional withdrawal”, Comment 7 of Rule 1.16 further provides:
A lawyer may withdraw from representation in some circumstances. The lawyer has the option to withdraw if it can be accomplished without material adverse effect on the client’s interests. Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. Withdrawal is also permitted if the lawyer’s services were misused in the past even if that would materially prejudice the client. The lawyer also may withdraw where the client insists on a repugnant or imprudent objective.
None of this sounds terribly complicated, right? But it becomes very complicated indeed when one considers the conflicting energy generated by Rule 1.6, which provides that “[a] lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation …” Comment 5 of Rule 1.6 defines “confidential information as follows:
The confidentiality rule applies not merely to matters communicated in confidence by the client but also to virtually all information relating to the representation, whatever its source. The term “confidential information” relating to representation of a client therefore includes information described as “confidences” and “secrets” in former [ethical rule] DR 4-101(A) but without the limitation in the prior rules that the information be “embarrassing” or “detrimental” to the client. Former DR 4-101(A) provided: “`Confidence’ refers to information protected by the attorney-client privilege under applicable law, and `secret’ refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client.”
In short, the “confidential information” an attorney may not share includes “virtually all information relating to the representation”, including but not limited to information that would be embarrassing or detrimental to the client. Rule 1.6 (b) sets forth a handful of exceptions permitting the lawyer to reveal confidential information in extreme situations, such as “to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm”, or in instances when the attorney is required to defend his or her actions as counsel, such as when a client sues for malpractice.
The single biggest exception to Rule 1.6 is where the rule allows the attorney disclose confidential information through “disclosures that are impliedly authorized in order to carry out the representation”. It is through the implied authorization exceptions that attorneys perform the day-to-day tasks of lawyering, such as conducting negotiations, answer straight-forward questions about the client posed by a judge or opposing counsel, and discussing details of the case with experts, witnesses and other individuals. After all, an attorney could hardly do her job if she were bound by an absolute vow of silence.
However, nothing in Rule 1.6 permits the attorney to disclose “confidential information” to a judge who insists that the attorney must provide a reason for withdrawing from a case. Indeed, just the opposite is true: the Board of Bar Overseers’ decision database is scattered with disciplinary sanctions against attorneys who “said too much” in motions to withdraw, leading to sanctions for disclosing confidential information. Moreover, none of the rules explain what an attorney should do when he or she has valid grounds for optional or mandatory withdrawal, but a judge refuses to allow the attorney’s withdrawal from the case.
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Judges can and will occasionally refuse to allow an attorney’s withdrawal from a case. I recall one divorce case involving a fellow attorney in particular. The attorney was attempting to withdraw from the divorce case because her client had declared bankruptcy, and the $5,000 in fees the client owed the attorney was already going to be wiped out by the bankruptcy trustee. The client and attorney both attended the motion to withdraw. The client expressed regret to the judge about not being able to pay the attorney for past monies owed (bankruptcy law expressly prohibited the client from paying the debt to the attorney, which would have been treated as an unfair preference), and told the judge that she could not pay the attorney moving forward. The case was somewhat close to trial, and the judge forced the attorney to remain in the case.
In general, judges allow attorneys to withdraw from legal proceedings, but the closer the case moves towards trial, the more judges tend to bristle about letting an attorney out of the case. This practice is particularly frustrating for attorneys in the Probate and Family Court, since, as the Boston Globe recently reported, “[b]etween 50 and 75 percent of probate and family court litigants don’t have attorneys.” Preventing an attorney from withdrawing seems especially problematic when three-quarters of the litigants in the same court have no lawyer at all.
The more common grounds for an attorney’s withdrawal is generally one of two things: (a.) the client has terminated the attorney’s representation or (b.) communications between the client and attorney have degraded to the point where the attorney feels or she can longer provide effective legal representation. For attorneys seeking to withdraw on either ground, recent changes to the Rules of Professional Conduct are notable, to the extent that judges occasionally deny attorneys’ requests to withdraw despite a breakdown in communications.
A simple word search for the phrase “informed consent” in the most recent edition of the Rules of Professional reveals 73 separate instances of the phrase within the Rules. While the concept of informed consent is familiar, it did not feature prominently in the Massachusetts Rules of Professional Conduct until the latest batch of rule changes. Rule 1.0 (f) defines “informed consent” as follows:
“Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.
Further, Rule 1.0 (c) explains the definition of the phrase “confirmed in writing” as it relates to informed consent:
“Confirmed in writing,” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (f) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.
Comments 6 and 7 to Rule 1.0 explain the new prevalence of informed consent throughout the rules:
 Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent of a client or other person (e.g., a former client or, under certain circumstances, a prospective client) before accepting or continuing representation or pursuing a course of conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to obtain such consent will vary according to the Rule involved and the circumstances giving rise to the need to obtain informed consent. The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client’s or other person’s options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need not inform a client or other person of facts or implications already known to the client or other person; nevertheless, a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving the consent. Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by other counsel in giving the consent should be assumed to have given informed consent.  Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client’s or other person’s silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a person’s consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of “writing” and “confirmed in writing,” see paragraphs (q) and (c). Other Rules require that a client’s consent be obtained in a writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a definition of “signed,” see paragraph (q).
The take away from the new rules is this: an attorney who is unable to obtain a timely, clear, written response from a client regarding the course of action to take on a particular issue is unable to represent that client under the Massachusetts Rules of Professional Conduct. Indeed, where the rules provide that actions taken by the attorney without the client’s informed consent are “invalid”, it is highly inappropriate for an attorney to continue representing a client – if he or she is ordered to do so by a judge – if the attorney is unable to obtain direction from the client.
For attorneys seeking to withdraw from cases, the new rules present an additional tool for the careful, often precarious task of explaining to the judge why the attorney must withdraw without revealing confidential information.
About the Author: Jason V. Owens is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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