PLEASE NOTE: Publication for public comment is not, and shall not be construed as, a recommendation or approval by the Board of Trustees of the materials published.

SUBJECT:
Proposed Formal Opinion Interim No. 12-0001 (Disclosure of Confidences at Motion for Withdrawal).

BACKGROUND:

The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct.  In accordance with Tab 19, Article 2, Section 6(g) (as modified by Tab 12, Title 1, Division 2, Rule 1.10) of the State Bar Board Book, the Committee shall publish proposed formal opinions for public comment.


DISCUSSION/PROPOSAL:

Proposed Formal Opinion Interim No. 12-0001 considers: What information may an attorney ethically disclose to the court to explain her need to withdraw from representation – particularly in the face of an order to submit to the court, in camera or otherwise, the substance of the attorney-client communications leading to the need to withdraw?


The opinion interprets rules 3-500, and 3-700 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code sections 6068(b), 6068(e)(1), and 6103.


The opinion digest states: An attorney may disclose to the court only as much as is reasonably necessary to demonstrate her need to withdraw, and ordinarily it will be sufficient to say only words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney-client relationship.  In attempting to demonstrate to the court her need to withdraw, an attorney may not disclose confidential communications with the client, either in open court or in camera.  To the extent the court orders an attorney to disclose confidential information, the attorney faces a dilemma in that she may not be able to comply with both the duty to maintain client confidences and the duty to obey court orders.  Once an attorney has exhausted reasonable avenues of appeal or other further review of such an order, the attorney must evaluate for herself the relevant legal authorities and the particular circumstances, including the potential prejudice to the client, and reach her own conclusion on how to proceed.  Although this Committee cannot categorically opine on whether or not it is acceptable to disclose client confidences even when faced with an order compelling disclosure, this Committee does opine that, whatever choice the attorney makes, she must take reasonable steps to minimize the impact of that choice on the client.


At its May 31, 2013 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 12 0001 for a 90 day public comment distribution.  Subsequently, at its May 16, 2014 meeting, COPRAC revised the opinion in response to the public comments received and, in further accordance with its Rules of Procedure, tentatively approved Formal Opinion Interim No. 12-0001 for an additional 90-day public comment distribution.

ANY KNOWN FISCAL/PERSONNEL IMPACT:

None

ATTACHMENT:
Proposed Formal Opinion Interim No. 12-0001

SOURCE:

State Bar Standing Committee on Professional Responsibility and Conduct

DEADLINE:

5 p.m., Sept. 4, 2014              

DIRECT COMMENTS TO:
Angela Marlaud
The State Bar of California
180 Howard St.
San Francisco, CA 94105-1639
Phone: 415-538-2116
Fax : 415-538-2171
E-mail: angela.marlaud@calbar.ca.gov