When moving to withdraw, can a lawyer tell the court the client won't cooperate, won't pay, or has stalled discovery?

Plain-English summary

During litigation, a lawyer and client have an unresolved dispute, and the lawyer files a motion to withdraw in which the lawyer wants to state one of four reasons: the client will not listen to advice; the client will not cooperate; the client has not paid bills timely; or the client has been untimely and uncooperative in discovery. The opinion asks whether the lawyer may unilaterally provide any of that client information to the court in the motion, and answers no, qualified.

The opinion applies Oregon RPC 1.6, which bars revealing information relating to the representation, defined in Oregon RPC 1.0(f) to include information that would be embarrassing or likely detrimental to the client. It concludes the lawyer's confidentiality duty continues through a withdrawal motion, and that the four statements likely constitute protected information, since, for example, a client's inability to pay may prejudice settlement and a discovery failure may invite sanctions. The lawyer therefore cannot unilaterally make this information public unless a Oregon RPC 1.6(b) exception applies. The opinion concludes that neither a disagreement over how to handle the matter nor a failure to pay fees is yet a "controversy between the lawyer and the client" under Oregon RPC 1.6(b)(4); the clear examples of such a controversy are a ripe fee dispute or a malpractice claim, where fairness puts the lawyer on equal footing with the client.

The opinion then addresses what happens if the court asks for the basis of the withdrawal or orders disclosure. Quoting the comment to ABA Model Rule 1.16, it concludes that a lawyer's statement that professional considerations require termination ordinarily should be accepted as sufficient. If the court orders disclosure, the lawyer may reveal information under Oregon RPC 1.6(b)(5) only to the extent reasonably necessary to comply, and should limit disclosure, for example by offering to submit the information under seal or outside the presence of the opposing party, to avoid prejudice to the client. The opinion notes it does not address the situation where the client discharges the lawyer, in which the lawyer may state the motion is brought under Oregon RPC 1.16(a)(3).

In practice

This opinion (revised 2016 from a 2011 opinion) interprets the current Oregon Rules of Professional Conduct, but it is more than five years old, so readers should verify the current rule text before relying on specifics. The opinion holds that the confidentiality duty survives a withdrawal motion and that common reasons for withdrawing, noncooperation, nonpayment, or discovery failures, are usually protected and cannot be volunteered to the court. Per the opinion, the self-defense exception in Oregon RPC 1.6(b)(4) is not triggered by an ordinary dispute or unpaid fees, only by a ripe controversy like a fee dispute or malpractice claim. The opinion holds that a general statement that professional considerations require withdrawal ordinarily suffices, and that any court-ordered disclosure must be limited to what is reasonably necessary, with measures like filing under seal to protect the client.

Common questions

Q: Can a lawyer tell the court in a withdrawal motion that the client won't pay or won't cooperate?

A: No, usually. The opinion concludes those reasons are typically information relating to the representation, protected by Oregon RPC 1.6, that the lawyer cannot unilaterally disclose.

Q: Doesn't the lawyer-client dispute let the lawyer reveal the reasons under the self-defense exception?

A: Not at the withdrawal stage. The opinion concludes a mere disagreement or unpaid fees is not yet a "controversy between the lawyer and the client" under Oregon RPC 1.6(b)(4); the clear examples are a ripe fee dispute or malpractice claim.

Q: What should the lawyer tell the court instead?

A: The opinion concludes a statement that professional considerations require termination of the representation ordinarily should be accepted as a sufficient explanation.

Q: What if the court orders the lawyer to disclose the reason?

A: The opinion concludes the lawyer may then reveal information under Oregon RPC 1.6(b)(5) only to the extent reasonably necessary, and should limit disclosure, such as by submitting it under seal or outside the opposing party's presence.

Background and rules framework

The opinion interprets Oregon RPC 1.6 (confidentiality), including the self-defense exception in 1.6(b)(4) and the compliance-with-law exception in 1.6(b)(5), the definition of protected information in Oregon RPC 1.0(f), and Oregon RPC 1.16(c) (tribunal permission to withdraw), corresponding to Model Rules 1.6 and 1.16. It applies the comment to ABA Model Rule 1.16 on explaining a withdrawal to the court.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.6 / Model Rule 1.6 (confidentiality; self-defense and compliance exceptions)
• Oregon RPC 1.0(f) (definition of information relating to the representation)
• Oregon RPC 1.16(c) / Model Rule 1.16 (notice to or permission of a tribunal to withdraw)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-34 (withdrawal without disclosing client wrongdoing)

See also

• OSB Ethics Op. 2005-1: Withdrawal From Litigation for Unpaid Fees
• OSB Ethics Op. 2005-33: Withdrawal When the Client Cannot Be Found
• OSB Ethics Op. 2005-34: Client Perjury

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2011-185.pdf