How much can a lawyer disclose when moving to withdraw from a case for unpaid fees?
ABA Formal Opinion 476: Confidentiality When Withdrawing for Nonpayment of Fees
Short answer: The opinion concludes that when a lawyer moves to withdraw from a civil case for nonpayment of fees and the court requires supporting facts, Rule 1.6(b)(5) permits the lawyer to disclose only the confidential information reasonably necessary for the court to rule on the motion, and judges should be sensitive to the lawyer's confidentiality duties.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The opinion addresses the tension between a lawyer's right to withdraw for nonpayment and the duty of confidentiality. Rule 1.16(b)(5) and (b)(6) permit withdrawal when a client substantially fails to pay after reasonable warning, but withdrawal before a tribunal is subject to Rule 1.16(c) and the court's procedural rules, which usually require a motion. In preparing that motion, the lawyer must weigh Rule 1.6's broad protection of "information relating to the representation," disclosing under a Rule 1.6(b) exception only to the extent reasonably necessary. As the opinion puts it, "when in doubt, a lawyer should err on the side of non-disclosure."
The opinion notes that Rule 1.16 Comment [3] indicates a lawyer's statement that "professional considerations require termination of the representation ordinarily should be accepted as sufficient." In practice, however, many courts require more specific information about fees owed and services performed. The opinion concludes that when a judge seeks additional information, Rule 1.6(b)(5), which permits disclosure to establish a claim in a controversy between lawyer and client, authorizes disclosure limited to what is reasonably necessary to respond.
On the judicial side, the opinion observes that "trial courts have wide discretion when ruling on motions to withdraw" and that "this need for judicial sensitivity applies as well when the judge is considering a motion to withdraw." It sets out a graduated approach: file a motion citing only "professional considerations"; if the court needs more, seek to persuade it to rule without confidential disclosure while asserting privilege; and only if that fails, disclose the minimum necessary by restricted means such as in camera sealed review, redaction, or a protective order. The opinion cautions that "a lawyer's disclosure of client information in camera is itself a form of 'revealing' under Rule 1.6," and if the court ultimately orders disclosure, Rule 1.6(b)(6)'s court-order exception applies.
In practice
Under this opinion, a lawyer seeking to withdraw for nonpayment proceeds in steps: move citing professional considerations, resist further disclosure where possible, and if pressed, reveal only what the court reasonably needs, preferably through protected means. The opinion holds that Rule 1.6(b)(5) supplies the authority for that limited disclosure and that Rule 1.6(b)(6) applies if the court orders disclosure. It frames a parallel expectation for judges: to limit what confidential information they require and to consider mitigation such as in camera submissions under seal.
Common questions
Q: Is it enough to tell the court "professional considerations" require withdrawal?
A: Per Rule 1.16 Comment [3], that statement ordinarily should be accepted as sufficient, but the opinion notes many courts in practice require more before ruling.
Q: If the court demands details, how much can I reveal?
A: The opinion says only the confidential information reasonably necessary for the court to make an informed decision, disclosed under Rule 1.6(b)(5) and preferably by restricted means.
Q: Does an in camera submission avoid the confidentiality concern?
A: Not entirely. The opinion states that disclosing client information in camera is itself a form of "revealing" under Rule 1.6, though it is a useful protective tool.
Q: What should I do before disclosing anything?
A: The opinion describes a graduated approach: cite professional considerations first, then try to persuade the court to rule without disclosure while asserting confidentiality, and disclose the minimum only if that fails.
Background and rules framework
The opinion interprets Model Rule 1.6 (confidentiality), particularly Rule 1.6(b)(5) (disclosure to establish a claim in a lawyer-client controversy) and Rule 1.6(b)(6) (disclosure to comply with a court order), together with Model Rule 1.16 (declining or terminating representation), including 1.16(b)(5), 1.16(c), and 1.16(d). It references Model Rule 3.3 (candor) and Rule 3.4(c) (not disobeying tribunal rules), and draws on the Model Code of Judicial Conduct for the judge's role.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 1.6 (confidentiality), including 1.6(b)(5) and 1.6(b)(6)
- ABA Model Rule 1.16 (withdrawal), including 1.16(b)(5), (c), (d)
- ABA Model Rules 3.3, 3.4(c)
Other opinions cited:
- ABA Formal Op. 473 (2016): responding to a subpoena for client information
- ABA Formal Op. 92-366: "noisy withdrawal"
- ABA Formal Op. 93-370: judicial sensitivity to confidentiality
- NYSBA Ethics Op. 1057 (2015); Oregon Formal Op. 2011-185
Cases:
- In re Gonzalez, 773 A.2d 1026 (D.C. 2001), erring on the side of non-disclosure
See also
- ABA Formal Op. 473: Responding to a Subpoena for Client Information
- ABA Formal Op. 505: Fees Paid in Advance
- ABA Formal Op. 480: Confidentiality in Lawyer Blogging
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: aba-formal-opinion-476.pdf