Navigating the difficult waters of an attorney-client breakup

California has a long-held policy of encouraging frank and open dialogue between a client and her attorney. This policy is expressed in its Rules of Professional Conduct. California Rule of Professional Conduct 1.6 provides that an attorney shall not reveal attorney-client communications unless the client provides informed consent to do so. The exception is if an attorney reasonably believes that she must disclose a privileged communication to prevent her client from engaging in a criminal act that the attorney reasonably believes may result in death or substantial bodily harm to someone. Rule 1.6(b). Therefore, clients are the holders of the privilege -- and only they are free to divulge communications they have with their attorneys.

The Right to Withdraw

Only in rare circumstances may an attorney divulge or be asked to divulge communications between themselves and his client. But sometimes the attorney-client relationship breaks down, or circumstances change that create a conflict of interest that makes it impossible for an attorney to carry out her duty of loyalty to the client. As in many types of relationships, sometimes attorneys must break up with their clients. Unlike their clients, however, attorneys in California do not have an absolute right to withdraw from the representation. In the absence of client consent, an attorney must receive permission from the court to withdraw representation of a client in California.

There are numerous grounds by which an attorney may withdraw their representation. Some grounds are mandatory, others are permissive. The rules require an attorney to withdraw if an actual conflict of interest arises. In California, former Rule 3-310(C) stated broadly: An attorney "shall not, without the informed written consent of each client: (1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or (2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or (3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter." However, on Nov. 1, 2018, several new and amended Rules of Professional Conduct became effective. One major change was to Rule 3-310(C). In conforming more closely to American Bar Association Model Rule 1.7, California changed its rule to give a more detailed definition of what circumstances require informed consent and what information needs to be disclosed for a client to have given informed written consent. California's new Rule 1.7 prohibits attorneys without informed written consent to represent a client: "(a) if the representation is directly adverse to another client in the same or a separate matter or (b) if there is a significant risk the lawyer's representation of the client will be materially limited by the lawyer's responsibilities to or relationships with another client, a former client or a third person, or by the lawyer's own interests."

Subsection (c) provides that that even in the absence of the significant risk described in subsection (b), there are still circumstances where an attorney must provide written disclosure to the client of certain relationships. For example, if the attorney knows that another party's lawyer is married to or closely related to that attorney. The new rule ends with a provision stating that an attorney may continue with their representation only if they have complied with all of the preceding subsections, and: "(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; and (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal."

Making a Motion to Withdraw

Motions to withdraw must be made on straightforward Judicial Council forms accompanied by an attorney declaration, which must state why consent to could not be obtained "in general terms and without compromising the confidentiality of the attorney-client relationship." See CRC 3.1362(a), (c). Attorneys may seek to withdraw representation at any point -- even in the middle of a trial. While it is critical to preserve attorney-client confidences, even when seeking to withdraw, attorneys cannot make blanket, boilerplate statements about why they are seeking to withdraw and expect their motions to be automatically granted. Trial courts have the discretion to require counsel to describe why they are seeking to withdraw to assess whether the attorney's motion is being made in good faith. See Manfredi & Levine v. Superior Court, 66 Cal. App. 4th 1128, 1134 (1998).

Whether an attorney has made a showing of good faith in moving to withdraw from representation is a fact-specific inquiry, and a court may look to all of the particular circumstances and history of a case in ruling on such a motion. See Manfredi, 66 Cal. App. 4th at 1131-34. A trial court may even consider the history of an attorney's conduct throughout a case in assessing whether they are acting in good faith in attempting to withdraw. In some cases, an attorney seeking to withdraw may be allowed to do so even if providing almost no detail about why they are trying to withdraw; in others, an attorney may have to provide much more information.

In one example, Leversen v. Superior Court, 34 Cal. 3d 530 (1983), a criminal defense attorney asked to be relieved midtrial because he could not continue to adequately represent his client in light of recently discovering that his office represented a rebuttal witness which created a conflict of interest. The attorney provided no detail as to why this discovery caused a conflict in the interest of protecting attorney-client communications. In Leversen, the California Supreme Court held that the attorney, whose credibility and honesty had not been called into question but rather the nature of the conflict, could properly withdraw based on the evidence that had already been presented at trial and the advanced stage of the trial.

In another example, Uhl v. Municipal Court, the attorney seeking to withdraw solely advised the court that a conflict had arisen between two of his clients without further detail; the trial court granted the motion as under the circumstances and the history of the case, the court did not doubt the attorney's good faith basis. See Uhl v. Municipal Court, 37 Cal. App. 3d 526, 528 (1974); Manfredi, 66 Cal. App. 4th at 1134.

But in Manfredi, the court ruled differently. There, the attorney seeking to withdraw provided a blanket assertion to the court that he could not continue representation without violating the State Bar Rules of Professional Conduct without any detail as to the attorney's ethical dilemma. The trial court denied the attorney's motion, citing his history of delay tactics throughout the proceedings and implying that the attorney's purported conflict was yet another delay tactic. The appellate court upheld the trial court's ruling without prejudice, noting that the attorney could have and still could request an in-camera proceeding to provide more information to the trial court about the nature of the conflict. Trial courts are not required to offer in-camera proceedings for motions to withdraw, but an attorney seeking to withdraw may request them to support their motion.

Conclusion

When seeking to withdraw, attorneys are bound to protect their clients' confidences, but cannot make blanket assertions about the nature of a conflict of interest. Attorneys must be aware that a trial court will not tolerate motions to withdraw being used as a delay tactic or litigation tactic as shown in Manfredi. Simply put, attorneys cannot manufacture a conflict in order to withdraw their representation. However, it is worth noting that Manfredi, Leversen and Uhl were all decided before California's recent rule changes. These changes to the definition and requirements concerning a conflict of interest will likely be the subject of much dispute and future appeals over the interpretations of "significant risk" and whether an attorney's representation has become "materially limited" and California attorneys should make themselves familiar with the new Rules of Professional Conduct.