Ethics Opinion 266

Withdrawal From Representation Requiring Court Approval; Withdrawal Conditioned on Disclosure of Client’s Whereabouts

Where the rules of a tribunal require a lawyer to seek leave of the tribunal before withdrawing from a representation, the Rules of Professional Conduct also require the lawyer to seek such approval. It is insufficient for a withdrawing lawyer merely to inform the client of upcoming proceedings in his or her case and to advise the client to secure new counsel.

Where the Immigration Court will grant unconditional leave to withdraw only if the lawyer discloses confidential client information, the lawyer may not disclose the information without client consent. Rather, the lawyer must remain in the case for acceptance of service on behalf of his client.

Applicable Rules

• Rule 1.6 (Confidentiality of Information)
• Rule 1.16 (Declining or Terminating Representation)
• Rule 3.4(c) (Obligation to Obey Tribunal Rules)

Inquiry

In 1986, the Immigration and Naturalization Service (INS) promulgated rules that require a lawyer who is seeking to withdraw from a case to obtain leave from the immigration judge. Before this rule change, the inquirer reports, some lawyers did not file withdrawal notices because it was thought that the notices might trigger the scheduling of a hearing, a result usually not desired by clients in deportation proceedings.

The inquirer asks what ethical obligations are imposed upon a lawyer who receives a hearing notice after he no longer represents the client but before he has formally withdrawn as counsel. The inquirer first asks whether the lawyer must seek leave from the Immigration Court to withdraw or whether his obligation to the former client is discharged upon informing the client of the hearing notice and date and recommending to the client that he or she secure new counsel. The inquirer also asks whether, in seeking to withdraw from a representation, a lawyer must comply with a Board of Immigration Appeals ruling that requires a lawyer to provide the client’s last known address to the immigration judge before leave to withdraw will be unconditionally granted.

Matter of Rosales, Bd. of Immigration App. Interim Decision No. 3064 (April 21, 1988), articulates the requirements for granting a motion to withdraw from a representation before the Immigration Court. Rosales holds that a lawyer, when seeking to withdraw, must provide the court with the client’s “last known address, assuming it is more current than any address previously provided to the immigration judge.” The lawyer also must show that he attempted to advise his client, at the client’s last known address, about the scheduled hearing. Provided both of these requirements are met, the lawyer’s motion to withdraw will be unconditionally granted. If, however, the lawyer fails to provide the requisite information, the lawyer’s withdrawal will be granted on the condition that the lawyer remain responsible for acceptance of service.

Discussion

The inquirer is unclear about his intention to file the notice of withdrawal required by the INS rules. For purposes of this opinion, we assume that the inquirer intends not to file a notice of withdrawal out of concern that the notice would trigger a hearing. Thus, the question is whether the Rules of Professional Conduct are violated if a lawyer fails to file a notice of withdrawal as required by agency or court rules.

Rule 1.16, Declining or Terminating Representation, provides the bases upon which a lawyer is required or permitted to withdraw from a representation and obligates a lawyer, whenever a representation is terminated, to take various steps “to protect [the] client’s interests.¹

The rule also obligates a lawyer to continue to represent a client if so ordered by the tribunal. Thus, subsection (c) states:

When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

Rule 1.16 is the counterpart provision to former District of Columbia Code of Professional Responsibility Disciplinary Rule (DR) 2-110, Withdrawal From Employment. In particular, DR 2-110(A) provided:

If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.

While the language of Rule 1.16(c) is less direct than that of former DR 2-110(A), it is clear that Rule 1.16(c) also was intended to require that leave to withdraw be obtained from a tribunal when so required by the tribunal’s rules:

[Rule 1.16(c)] allows for court rules which, in many instances, condition withdrawal by any counsel of record on court approval. DR 2-110 (A)(1) of the predecessor Model Code expressly correlated the condition of court approval with the existence of rules of a tribunal. (Citations omitted.)

Annotation, ABA Model Rules of Professional Conduct, 276 (2d ed. 1992).

We therefore conclude that Rule 1.16(c) requires a lawyer to seek leave to withdraw if the rules of a tribunal require such approval.² It is insufficient merely to inform a former client of a pending hearing date and advise him or her to secure new counsel. Whenever a representation has terminated and approval to withdraw is required, the lawyer’s obligations are not discharged until he or she has secured such leave of the tribunal. See In re McKennett, 349 N.W.2d 29 (N.D. 1984) (notification of client and opposing counsel regarding withdrawal insufficient; local rules required lawyer to notify court as well); compare with In re Coe, 731 P.2d 1028 (Or. 1987) (lawyer’s failure to seek permission was not an ethical violation since probate court rules did not require permission to withdraw).

The risk that a client may be harmed by his or her lawyer’s compliance with the rules of a tribunal is not a consideration. See Rule 3.4(c) (lawyer cannot “knowingly disobey an obligation under the rules of a tribunal except for an assertion that no valid obligation exists”). In any event, where a lawyer does not know the location of his or her client, the client should not be harmed if, when the lawyer seeks leave to withdraw, the immigration judge asks the withdrawing lawyer for the client’s location. The lawyer can truthfully answer “no.”

The more difficult issue arises when the lawyer knows the client’s whereabouts. Information regarding the client’s location may, in some cases, be protected as a confidence and would, in many circumstances, be protected as a secret under Rule 1.6(b).³ While “confidence” is defined by the more narrow attorney-client privilege, “secret” is given a broader meaning to include all “other information gained in the professional relationship . . . the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.” (emphasis added). In the context of a deportation proceeding, where a deportation order cannot be effected without the authorities’ knowing the client’s whereabouts, it would be to the client’s obvious detriment for his or her lawyer to disclose the client’s last known address or where the client could be found.

In this regard, the ruling in Rosales, supra, does not, in and of itself, force a lawyer to reveal his client’s last known address. Rather, it gives the lawyer who seeks to withdraw from a representation a choice: (1) to withdraw unconditionally, the lawyer must disclose the client’s last known address; or (2) if the lawyer does not provide this information, the withdrawal will be granted only conditionally, i.e., the lawyer must continue to accept service on his client’s behalf.

Given this choice, we believe that the lawyer would violate Rule 1.6(a)(1) if he revealed his client’s whereabouts without the client’s consent. A lawyer in this position is limited to seeking conditional withdrawal, which does not require disclosure of a client confidence or secret.

Inquiry No. 87-9-49
Adopted: June 19, 1996

1. These steps include giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned. Rule 1.16(d).
2. Rule 1.16(c) is not limited to court cases. The rule also applies to administration agency proceedings. See G.C. Hazard, Jr. & W.W. Hodes, The Law of Lawyering § 1.16:401, at 484 (1996 Supp.), quoted in Annotation, supra at 275.
3. Rule 1.6 states in relevant part:
  (a) except when permitted under paragraph (c) or (d), a lawyer shall not knowingly:
    (1) reveal a confidence or secret of the lawyer’s client; . . . .
  (b) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client. . .
  (d) A lawyer may use or reveal client confidences or secrets:
    (2)(A)(1) When permitted by these rules or required by law or court order; . . .