Can a lawyer moving to withdraw from a case for the client's nonpayment of fees disclose the client's confidences in a supporting affidavit?
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This page answers the general question as of 1996. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer wanted to move for leave to withdraw from a pending matter because the client had repeatedly failed to pay despite promises to do so, including handing over checks that bounced. The lawyer asked whether the confidentiality rule barred him from filing an affidavit detailing the nonpayment. He planned to move to impound the affidavit and had already obtained opposing counsel's consent to that motion.
The committee concluded that disclosure was permitted. It read DR 2-110(C), which allowed withdrawal where a client "[d]eliberately disregards an agreement or obligation to the lawyer as to expenses or fees," together with the rule's requirement that the lawyer establish the factual basis to the court's satisfaction. The committee found that this implicitly permitted the lawyer to reveal some otherwise-confidential fee information, much as DR 4-101(C)(4) permitted disclosure to collect or establish a fee. In both situations, the committee said, the lawyer should reveal the minimum amount of confidential information needed to achieve the objective, and should take other steps, as this lawyer had, to prevent the information from spreading.
The committee addressed a Board of Bar Overseers private reprimand (PR-92-34) in which a lawyer attaching a client's complaint letters to a withdrawal motion was found to have violated several disciplinary rules. With no full opinion explaining the reprimand, the committee declined to read it as holding that a lawyer may never reveal any confidence in connection with a withdrawal motion. It suggested the reprimand may have rested on the lawyer revealing far more than necessary, or on his failure to seek the client's consent (cross-referencing its Opinion 96-4). The committee characterized the reprimand as a caution against over-disclosure, not a bar on disclosures necessary to support a withdrawal motion.
Currency note
This opinion was issued in 1996, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Could a lawyer disclose a nonpaying client's confidences to support a motion to withdraw?
A: The committee concluded he could. DR 2-110(C) required the lawyer to establish the factual basis for withdrawal to the court, which the committee read to implicitly permit revealing some otherwise-confidential fee information.
Q: How much could the lawyer reveal?
A: Only the minimum needed to establish the ground for withdrawal. The committee tied this to the same "necessary information" limit it applied to fee-collection disclosures under DR 4-101(C)(4).
Q: Did the lawyer have to limit how far the disclosure spread?
A: The committee said the lawyer should take steps to prevent the spread of the confidential information, noting approvingly that this lawyer had moved to impound the affidavit with opposing counsel's consent.
Background and rules framework
The opinion applied the predecessor disciplinary rules DR 2-110(C) (permissive withdrawal for a client's deliberate disregard of a fee obligation), corresponding to Model Rule 1.16, and DR 4-101(C)(4) (the confidentiality rule's exception for collecting or establishing a fee), corresponding to Model Rule 1.6. The committee also discussed Board of Bar Overseers Private Reprimand PR-92-34 and cross-referenced its Opinion 96-4.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.16 / DR 2-110(C) (permissive withdrawal for nonpayment)
- Model Rule 1.6 / DR 4-101(C)(4) (confidentiality; fee-related disclosure exception)
Other opinions cited:
- MBA Opinion 96-4 (seeking a client's consent before disclosing confidences)
- Board of Bar Overseers Private Reprimand No. PR-92-34, 8 Mass. Att'y Discipline Reports 328 (1992) (over-disclosure in a withdrawal motion)
See also
- MA Bar Ethics Op. 96-4: Confidences in self-defense
- MA Bar Ethics Op. 99-1: Suing a former client pro se for fees
Source
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