The Practical Lawyer

January 2-8, 2017

Confidentiality must still be maintained when withdrawing from a civil case

By Ethan C. Nobles

The American Bar Association (ABA) released an opinion in mid-December regarding preserving confidentiality when a lawyer withdraws from a case due to lack of payment.

Because the Arkansas Rules of Professional Conduct are derived from the Model Rules of Professional Conduct and are substantially similar, it’s safe to assume that attorneys here in the Natural State would be wise to follow the ABA’s advice.

Under Rule 1.16(b)(5) of both the Arkansas and Model rules, an attorney may withdraw from a civil case when “the client fails substantially to fulfill 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.”

That rule, of course, means that a lawyer can withdraw from a case when legal fees are not paid as agreed. Typically, an attorney will withdraw from a case by filing an order asking that he or she be allowed to do so. If the court grants that order, then the attorney can cease representation.

But, there is a problem here. Rule 1.6 states that an attorney shall not reveal information relating to the representation of a client. How, then, can an attorney file a motion to withdraw from a case because a client isn’t paying fees as agreed without violating confidentiality?

The ABA does have some good advice. The motion to withdraw should state he or she wants to withdraw based on “professional considerations” or something similar that doesn’t reveal any confidential information.

Of course, a judge might want more details than that because they generally don’t grant motions without being given a good reason to do so. If pressed, an attorney could request that any confidential information about the case be revealed in the judge’s chambers or through some other method where client privacy is preserved as much as possible.

At any rate, it seems very clear that Rule 1.6 still applies even when an attorney is looking to terminate representation. Confidential matters must remain confidential, and a lawyer who wants to withdraw from a case for just about any reason needs to keep that in mind and review Rule 1.6 for guidance on what can and cannot be revealed.

Ethan C. Nobles is an attorney in Benton focusing on real estate, evictions, contracts, wills, trusts, incorporations, bankruptcy and other areas of law as the mood strikes. You can reach him at Ethan@NoblesLawFirm.com or visit him on the Internet at NoblesLawFirm.com.