(Based on The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-192.)

Purpose and Scope of Issue

One of the most important duties of an attorney is to preserve the confidences of her client. “No rule in the ethics of the legal profession is better established nor more rigorously enforced than this one.” (Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 572.) Business and Professions Code section 6068(e)(1) requires an attorney “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

Rule 3-100(A) provides, “A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client . . .” except under certain limited exceptions not applicable here. An attorney moving to withdraw from representation faces a difficult dilemma — how to present sufficient facts to enable the court to consider the motion, while still maintaining the client’s confidences. (See California Rules of Court, rule 3.1362(c) (requiring party moving to withdraw to file a declaration stating “in general terms and without compromising the confidentiality of the attorney-client relationship why a motion” is necessary); The State Bar of Cal. Standing Cmte. on Prof. Resp. and Conduct Formal Op. No. 2015-192.)

Attorney Withdrawal In General

Unlike their clients, attorneys do not have an absolute right to withdraw from representation at any time with or without cause. “The right of counsel to withdraw from pending litigation is not absolute.” (Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197.) Even where grounds for termination exist, attorneys seeking to withdraw must comply with the procedures set forth in California Rule of Professional Conduct, rule 3-700 and are subject to discipline for failure to do so. Where withdrawal is not mandatory, an attorney normally must continue representation on the matter undertaken. The fact the client or matter proves unpleasant or unprofitable does not excuse attorney performance. The rules have been liberally construed to protect clients. (See Vann v. Shilleh, supra, 54 Cal.App.3d. at p. 197; Chaleff v. Sup. Ct. (1977) 69 Cal.App.3d 721; Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) An attorney, either with client’s consent or court’s approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to the client’s interests. A lawyer violates his or her ethical mandate by abandoning a client (Pineda v. State Bar, 49 Cal.3d 753, 758-759), or by withdrawing at a critical point and thereby prejudicing the client’s case (Rules Prof. Conduct, rule 3-700(A)(2); Vann, supra 54 Cal.App.3d at 197).

Where the procedures are properly followed, withdrawal is permitted in the appropriate circumstances. Pursuant to California Rules of Professional Conduct, rule 3-700(A)(2), “[a] member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules.”

Motion to Withdrawal and Conflict with Non-disclosure

“Where as here the duty not to reveal confidences prevented counsel from further disclosure and the court accepted the good faith of counsel’s representations, the court should find the conflict sufficiently established and permit withdrawal.” (Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 592 (finding “public defender's disclosure was sufficient to permit withdrawal, and the trial court should have granted the motion instead of placing the attorney in the untenable position of asserting the client's constitutional right to effective assistance only by sacrificing client confidences.”); Formal Opinion No. 2015-192.)

Rules of Professional Conduct of the State Bar of California — Related Sections

Rule 3-700(B)(1) provides that withdrawal is mandatory where, “[t]he member knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person.”

Rule 3-700(B)(2) provides that withdrawal is mandatory where, “[t]he member knows or should know that continued employment will result in violation of these rules or of the State Bar Act.”

Rule 3-700(A)(2), however, provides in part that, “A member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, [and] allowing time for employment of other counsel . . . .” (See also Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915 [26 Cal.Rptr.2d 554] (“A lawyer violates his or her ethical mandate by abandoning a client [citation], or by withdrawing at a critical point and thereby prejudicing the client’s case.”; see also In the Matter of Riley (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 91, 115 (finding that attorney’s duties to client continue until a substitution of counsel is filed or the court grants leave to withdraw); Cal. State Bar Formal Opn. No. 1994-134 (discussing duty to provide competent representation pending court determination on issue of withdrawal).) Moreover, notwithstanding Attorney’s ethical obligation to withdraw – and how she may weigh her need to withdraw against any prejudice to Client – Attorney may not withdraw absent either client consent or a court order. (Code Civ. Proc., § 284; rule 3-700(A)(1); Formal Opinion No. 2015-192.)

In Camera Review

The issue of reviewing potentially privileged information in camera is addressed in Evidence Code section 915(a), but only in the context of determining whether the information is privileged in the first instance. Section 915(a) states that, with certain inapplicable exceptions, “the presiding officer may not require disclosure of information claimed to be privileged . . . in order to rule on the claim of privilege.” The California Supreme Court has ruled similarly, specifically addressing in camera inspections. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 739 (“Evidence Code section 915 prohibits a court from ordering in camera review of information claimed to be privileged in order to rule on the claim of privilege.”); see also Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, 45, n.19 (prohibiting in camera inspection of privileged document to determine whether attorney-client privilege had been waived; Formal Opinion No. 2015-192.)