How much can a lawyer tell the judge about the client when filing a motion to withdraw from the case?

Plain-English summary

The opinion addresses a recurring bind: Rule 1.16(c) requires a lawyer before a tribunal to obtain the court's permission to withdraw, and a court may demand a justification, but Rule 1.6(a) protects all "information relating to the representation," not just privileged communications. The committee concludes that the confidentiality duty controls. Neither Rule 1.6 nor Rule 1.16 implicitly authorizes a lawyer to disclose information relating to the representation to justify a withdrawal motion, because, as the opinion puts it, disclosure to end the representation "is not impliedly authorized in order to carry out the representation." This holds true even where Rule 1.16(a) makes withdrawal mandatory.

The opinion grounds this in the drafters' deliberate choice. Comment [3] to Rule 1.16 says that where the court asks for an explanation the lawyer is bound to keep confidential, "the lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient." The committee contrasts the implicit exception it recently recognized in Formal Opinion 515 (crimes against the lawyer), noting that there the drafters had not considered the problem, whereas here "the drafters specifically considered the tension between the confidentiality obligation and Rule 1.16(c) and opted not to carve out an exception."

The opinion then maps the routes that do permit disclosure: information that is not related to the representation (for example, the lawyer's own heart attack supporting a Rule 1.16(a)(2) impairment motion), the client's informed consent, and the Rule 1.6(b) exceptions, most relevantly Rule 1.6(b)(6) (disclosure to comply with a court order) and the Rule 1.6(b)(5)/Formal Opinion 476 route for fee-nonpayment motions. It acknowledges the rare case where a mandatory-withdrawal motion (often a confidentiality-bound conflict of interest) cannot be justified and is denied, and concludes that continuing the representation by court order "should not subject a lawyer to discipline or sanction."

Finally, the opinion sets out a multi-step approach, adapted from Formal Opinion 476: file a motion citing only "professional considerations" or "irreconcilable differences"; if the court wants more, urge it to rule without disclosure and assert all non-frivolous confidentiality and privilege claims; if ordered to disclose (triggering Rule 1.6(b)(6)), disclose only what is reasonably necessary and through restricted means such as in camera or under seal; and if the court merely threatens to deny the motion, remind it that absent an order the lawyer must keep the information confidential.

In practice

Under this opinion, a lawyer who must move to withdraw before a tribunal starts with the barest possible motion and treats client confidentiality as paramount. Where the ground for withdrawal does not require revealing protected information, such as the lawyer's own impairment, the opinion permits a full explanation. Where the client consents, the lawyer may disclose what the informed consent covers, and the opinion notes it is often in the client's interest to consent to limited, careful disclosure to head off a court order for broader disclosure.

When the court presses for more, the opinion directs the lawyer to seek a ruling without disclosure and to assert confidentiality and privilege; only a court order (or a court rule or other law) triggering a Rule 1.6(b) exception permits disclosure, and then only to the extent reasonably necessary and, where possible, in camera or under seal. The opinion is explicit that if a barebones mandatory-withdrawal motion is denied, the lawyer must continue the representation, and doing so under the court's ruling should not expose the lawyer to discipline.

Common questions

Q: Can I explain to the judge why I want off the case?

A: Per the opinion, ordinarily only at a high level. Absent the client's informed consent or an applicable exception, Rule 1.6 bars disclosing information relating to the representation, so the lawyer should cite "professional considerations" and let that statement stand as the explanation.

Q: Does it matter that my withdrawal is mandatory under Rule 1.16(a)?

A: No. The opinion concludes the confidentiality limit applies even when withdrawal is mandatory, because neither Rule 1.6 nor Rule 1.16 implicitly authorizes disclosure to justify ending the representation.

Q: What if the judge orders me to disclose more?

A: Then Rule 1.6(b)(6) (compliance with a court order) applies, and the lawyer may disclose, but only to the extent reasonably necessary and preferably through in camera or under-seal submission to minimize harm to the client.

Q: What happens if I cannot justify the motion and it is denied?

A: The opinion concludes the lawyer must continue the representation per the court's ruling, and that continuing in compliance with the order should not subject the lawyer to discipline or sanction, for example for an unexplained conflict.

Q: Are there grounds where I can fully explain without breaching confidentiality?

A: Yes. The opinion gives the lawyer's own physical or mental impairment under Rule 1.16(a)(2) as an example, because that explanation concerns the lawyer, not information relating to the client's representation.

Background and rules framework

The opinion interprets Model Rule 1.6 (confidentiality of information), including the implied-authorization language of 1.6(a) and the exceptions in 1.6(b), together with Model Rule 1.16 (declining or terminating representation), particularly the mandatory grounds in 1.16(a), the permissive grounds in 1.16(b), the tribunal-permission requirement of 1.16(c), and Comment [3]. It identifies Rule 1.6(b)(6) (court order) as the most common operative exception, and notes that Rules 3.3 (candor, remedial disclosure), 1.13 (organization as client), and 1.14 (client with diminished capacity) may independently permit disclosure where their own requirements are met. It builds on Formal Opinion 476 (withdrawal for nonpayment), Formal Opinion 515 (implicit exception for crimes against the lawyer), and Formal Opinion 511R (scope of Rule 1.6).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality), including 1.6(a) and exception 1.6(b)(6) (court order)
• ABA Model Rule 1.16 (declining or terminating representation), including 1.16(a), (b), (c) and Comment [3]
• ABA Model Rule 3.3 (candor toward the tribunal), 1.13 (organization as client), 1.14 (client with diminished capacity)

Cases:

• Whiting v. Lacara, 187 F.3d 317 (2d Cir. 1999), withdrawal affidavit detailing client conduct
• People v. Waters, 483 P.3d 753 (Colo. 2019), discipline for unnecessary or overbroad disclosure
• Holloway v. Arkansas, 435 U.S. 475 (1978), duty to alert the court to a conflict of interest

Other opinions cited:

• ABA Formal Op. 476 (2016): disclosure in a withdrawal motion for nonpayment of fees
• ABA Formal Op. 515 (2025): rarity of implicit exceptions to the confidentiality duty
• NYSBA Ethics Op. 1057 (2015) and Cal. Formal Op. 2015-192: limits on disclosure in withdrawal motions

See also

• ABA Formal Op. 476: Confidentiality and Withdrawal for Nonpayment of Fees
• ABA Formal Op. 516: Material Adverse Effect and Permissive Withdrawal
• ABA Formal Op. 515: Reporting a Client's Crime Against the Lawyer
• ABA Formal Op. 511R: Confidentiality When Posting to Listservs

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-519.pdf