When a California lawyer must withdraw because the client is pursuing the case for improper purposes, what may the lawyer tell the court about the reason, and what must the lawyer do if ordered to disclose confidential client communications in camera?

State Bar of California COPRAC Formal Opinion 2015-192: Disclosure to Court of Reasons for Withdrawal

Short answer: The opinion concludes that an attorney may disclose to the court only as much as is reasonably necessary to demonstrate her need to withdraw, and ordinarily it is sufficient to state that "ethical considerations require withdrawal" or that there has been an "irreconcilable breakdown in the attorney-client relationship"; the attorney may not disclose confidential client information either in open court or in camera, and if a court orders such disclosure, the attorney must exhaust reasonable measures (client consent, writ relief, requested stay) before facing the dilemma, and must take reasonable steps to minimize impact on the client whichever choice is ultimately made.

Currency note

This opinion was issued in 2015, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rule 3-100 (confidentiality; now Rule 1.6), former Rule 3-700 (termination of employment; now Rule 1.16), and references former Rules 3-500, 3-600(B), and 3-110. Business and Professions Code sections 6068(b), 6068(e)(1), 6103, and 6106 remain in force. Subsequent rule amendments or later opinions may have changed parts of the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's 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. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The opinion analyzes a hypothetical in which Attorney represents Client (a closely held corporation) in a trade secret case. Six weeks before trial, Attorney concludes the claim lacks probable cause. CEO admits he wants to keep the suit going to damage Competitor's image before a trade show. Attorney determines she has a mandatory duty to withdraw under former Rule 3-700(B)(1) (action without probable cause and to harass or maliciously injure). CEO refuses to consent. Attorney moves to withdraw, stating only that "ethical considerations require my withdrawal." The judge presses for more, and ultimately orders Attorney to file a sealed declaration describing the privileged communications and to appear at an in camera hearing.

On the mandatory withdrawal duty, the opinion concludes Attorney must withdraw. Former Rule 3-700(B)(1) requires withdrawal when the lawyer knows the client is pursuing the action without probable cause and to harass. Rule 3-700(B)(2) requires withdrawal when continued employment will result in a rule or State Bar Act violation. The committee notes that Attorney must also take reasonable steps under Rule 3-700(A)(2) to avoid foreseeable prejudice to Client's rights (notice, time for replacement counsel; Code Civ. Proc. section 284), and may not actually withdraw without client consent or a court order.

On what to say in the motion, the opinion concludes Attorney may disclose only what is reasonably necessary. Drawing on Aceves v. Superior Court (1996), Leversen v. Superior Court (1983), Uhl v. Municipal Court (1974), Manfredi & Levine v. Superior Court (1998), and Forrest v. State of California Dept. of Corporations (2007), the committee holds that statements like "ethical considerations require withdrawal" or "irreconcilable breakdown" ordinarily suffice, especially when the lawyer represents in good faith that confidentiality prevents more. Aceves held that where the duty not to reveal confidences prevents counsel from further disclosure and the court accepts counsel's good faith, the court should find the conflict sufficiently established and permit withdrawal. The committee also draws on ABA Model Rule 1.16 Comment [3] and Model Rule 3.3 Comment [15], as well as Or. Formal Op. 2011-185 and Ariz. Ethics Op. 09-02.

On in camera disclosure, the opinion concludes that even in camera review of privileged communications is not permitted. The committee anchors this in Evidence Code section 915(a) and Costco Wholesale Corp. v. Superior Court (2009), which prohibit a court from ordering in camera review of information claimed to be privileged in order to rule on the privilege claim. By extension, a court may not review unquestionably privileged communications for the purpose of ruling on a withdrawal motion. The committee rejects a broader reading of Forrest and General Dynamics Corp. v. Superior Court (1994). Under Costco, the lawyer may testify about non-privileged circumstances of a communication, but the duty of confidentiality (broader than privilege) may also limit even that testimony if it would disclose client secrets.

On a direct court order to disclose, the opinion declines to categorically opine on which duty must yield. The committee surveys the dilemma between Business and Professions Code section 6068(e)(1) (confidentiality "at every peril to himself or herself") and Business and Professions Code section 6103 (willful disobedience of a court order). Section 6103 by its terms applies to orders the attorney "ought in good faith" obey, which is not obvious for an order requiring breach of confidentiality. The committee surveys Arm v. State Bar (1990), In the Matter of Boyne (Rev. Dept. 1993), In the Matter of Klein (Rev. Dept. 1994), In re Jackson (1985), People v. Kor (1954) (concurring opinion), Zimmerman v. Superior Court (2013), and out-of-state authorities (Ariz. Op. 00-11; D.C. Op. 288; R.I. Op. 98-02; Mass. Op. 94-7; Ex parte Enzor (Ala. 1960); Dike v. Dike (Wash. 1968)), finding them split. The committee concludes the attorney must exhaust every reasonable alternative (seek client consent to compromise; request a writ stay; request transfer to another judge to avoid trial-court prejudice) before facing the choice, and must take reasonable steps to mitigate harm to the client either way.

The opinion notes that involuntary disclosure under a court order typically does not waive the privilege under Evidence Code section 912(a), Regents of University of California v. Superior Court (2008), and Schlumberger Ltd. v. Superior Court (1981).

In practice

Under this opinion, conduct that was consistent with California's rules as they stood at the time is conduct in which the lawyer (i) when faced with a mandatory or permissive ground for withdrawal under former Rule 3-700, files a timely motion with notice to the client and a moving statement that does no more than say "ethical considerations require withdrawal" or "irreconcilable breakdown"; (ii) declines to provide privileged or confidential information either in open court or in camera, citing former Rule 3-100, section 6068(e)(1), and Aceves; (iii) if pressed by court order, exhausts reasonable measures (client consent to limited compromise, writ petition, stay request, requesting transfer of the motion to a different judge) before facing the section 6103 dilemma; and (iv) whichever choice is ultimately made, takes reasonable steps to mitigate prejudice to the client (former Rule 3-700(A)(2)). Verify against current Rules 1.6 and 1.16, and current Code of Civil Procedure sections, before relying on this framework.

Common questions

Q: How much does the lawyer have to tell the court to support a withdrawal motion?

A: Per the opinion, ordinarily only "ethical considerations require my withdrawal" or "irreconcilable breakdown in the attorney-client relationship." The committee holds that under Aceves v. Superior Court (1996) and Leversen v. Superior Court (1983), where the duty of confidentiality prevents further disclosure and the court accepts counsel's good faith, the court should find the conflict sufficiently established. The committee cites ABA Model Rule 1.16 Comment [3] for the same principle.

Q: Can the lawyer disclose privileged communications in camera if the court asks?

A: Per the opinion, no. The committee holds that Evidence Code section 915(a) and Costco Wholesale Corp. v. Superior Court (2009) prohibit in camera review of privileged information even to rule on a privilege claim. By extension, in camera review for purposes of ruling on a withdrawal motion is also prohibited. The lawyer may testify about non-privileged circumstances of a communication under Costco, but the duty of confidentiality is broader than the privilege and may limit even that testimony.

Q: What if the court orders the lawyer to disclose anyway?

A: Per the opinion, the lawyer must first exhaust reasonable alternatives, including seeking client consent to limited disclosure, filing a writ petition, asking for a stay, and requesting the motion be heard by a different judge to avoid prejudice at trial. The committee declines to opine categorically on whether the attorney must ultimately obey the order or refuse and risk contempt, noting the split of authority in California and other jurisdictions.

Q: Does obeying a court order to disclose waive the attorney-client privilege?

A: Per the opinion, ordinarily not. The committee notes Evidence Code section 912(a) requires the disclosure to be "without coercion," and that Regents of University of California v. Superior Court (2008) and Schlumberger Limited v. Superior Court (1981) hold that disclosure pursuant to a court order is coerced and does not constitute waiver, provided the holder has taken reasonable steps to resist.

Q: What if the client refuses to consent to withdrawal?

A: Per the opinion, the lawyer still must withdraw if the duty under former Rule 3-700(B) is mandatory, but cannot actually exit the representation absent court order under Code of Civil Procedure section 284 and former Rule 3-700(A)(1). The lawyer's role pending the court's ruling is to continue to represent the client competently (former Rule 3-110), to advise the client of risks (e.g., Code of Civil Procedure section 128.7 sanctions, malicious-prosecution exposure under Zamos v. Stroud (2004)), and to seek client consent to the in camera disclosure if necessary, with full disclosure to the client of adverse consequences (former Rule 3-500).

Q: What if withdrawal is permissive rather than mandatory?

A: Per the opinion, if the lawyer cannot satisfy both the duty of confidentiality and the court's order, and withdrawal is only permissive (former Rule 3-700(C)), the lawyer should consider withdrawing the motion to withdraw rather than facing the dilemma. The committee identifies former Rule 3-700(C)(1)(d) (client conduct rendering effective representation unreasonably difficult; People v. Robles (1970); Aceves) as a permissive alternative basis.

Background and rules framework

The opinion interprets former California Rules 3-100 (confidentiality), 3-700(A), (B), and (C) (termination of employment), and Business and Professions Code sections 6068(b), 6068(e)(1), and 6103. The committee draws on ABA Model Rules 1.6 and 1.16 (especially Comment [3]) and Model Rule 3.3 (especially Comment [15]) as persuasive authority. The opinion identifies the conflict between the lawyer's duty to the court (section 6068(b), section 6103) and the duty of confidentiality (section 6068(e)(1)) as the central problem and surveys both California and out-of-state authority.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 3-100 (confidentiality)
• Former California Rule 3-700, paragraphs (A)(1), (A)(2), (B)(1), (B)(2), (C)(1)(d)
• Former California Rule 3-500 (client communication)
• Former California Rule 3-600(B) (organizational client reporting up)
• Former California Rule 3-110 (competence; referenced)
• ABA Model Rule 1.6, including paragraphs (a) and (b)(6) and Comment [15]
• ABA Model Rule 1.16 and Comment [3]
• ABA Model Rule 3.3 and Comment [15]

Statutes:

• California Business and Professions Code section 6068(b), (e)(1)
• California Business and Professions Code section 6103
• California Business and Professions Code section 6106 (referenced)
• California Code of Civil Procedure section 284 (substitution of attorney)
• California Code of Civil Procedure section 128.7 (referenced)
• California Evidence Code sections 912(a), 915(a), 954
• California Rules of Court, rule 3.1362(c)
• California Constitution Article I, section 2(b) (reporter's privilege; referenced)

Cases:

• Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, foundational duty of confidentiality
• Aceves v. Superior Court (1996) 51 Cal.App.4th 584, sufficiency of "irreconcilable breakdown" representation
• Leversen v. Superior Court (1983) 34 Cal.3d 530, court acceptance of counsel's representation of conflict
• Uhl v. Municipal Court (1974) 37 Cal.App.3d 526, constitutional right to conflict-free counsel
• Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, when more detail can be required
• Forrest v. State of California Dept. of Corporations (2007) 150 Cal.App.4th 183, in camera hearing background
• Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, no in camera review of privileged information
• Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, same
• General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, possible procedures for limited disclosure
• People v. Robles (1970) 2 Cal.3d 205, breakdown in attorney-client relationship
• Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, prejudice from withdrawal at critical point
• In the Matter of Riley (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 91, continuing duty pending substitution
• Paradise v. Nowlin (1948) 86 Cal.App.2d 897, corporation may not represent itself
• Ferruzzo v. Superior Court (1980) 104 Cal.App.3d 501, withdrawal leaving corporation unrepresented
• Mandell v. Superior Court (1977) 67 Cal.App.3d 1, court weighs withdrawal against prejudice
• Estate of Falco (1987) 188 Cal.App.3d 1004, open question on attorney settling case in which withdrawal is required
• Zamos v. Stroud (2004) 32 Cal.4th 958, malicious-prosecution exposure
• Goldstein v. Lees (1975) 46 Cal.App.3d 614, privilege narrower than confidentiality duty
• Arm v. State Bar (1990) 50 Cal.3d 763, section 6103 violation despite client interest
• In the Matter of Boyne (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 389, willful failure to comply with sanctions order
• In the Matter of Klein (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 1, obedience to court order even if believed erroneous
• In re Jackson (1985) 170 Cal.App.3d 773, duty to respectfully yield to rulings
• In Matter of Respondent X (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 592, collateral bar rule not in California
• People v. Kor (1954) 129 Cal.App.2d 436, concurring opinion on obeying contempt to protect privilege
• Zimmerman v. Superior Court (2013) 220 Cal.App.4th 389, contempt for refusal to disclose where privilege not established
• In the Matter of Riordan (Review Dept. 2007) 5 Cal. State Bar Ct. Rptr. 41, bad faith requirement for moral turpitude in noncompliance
• Regents of University of California v. Superior Court (Aquila Merchant Services) (2008) 165 Cal.App.4th 672, waiver standard
• Schlumberger Ltd. v. Superior Court (1981) 115 Cal.App.3d 386, disclosure under court order is coerced, no waiver
• Duplan Corp. v. Deering Milliken, Inc. (D.S.C. 1974) 397 F.Supp. 1146, no waiver on in camera production
• Ex parte Enzor (1960) 270 Ala. 254, attorney correctly refused order
• Dike v. Dike (1968) 75 Wash.2d 1, attorney may be held in contempt while resisting

Other opinions cited:

• California State Bar Formal Opinions 1980-52, 1981-58, 1986-87, 1988-96, 1993-133, 1994-134, 2003-161: scope of client secrets and duty in withdrawal
• Or. Formal Opinion 2011-185: lawyer may not reveal basis for withdrawal unless an exception to Rule 1.6 applies
• Ariz. Ethics Opinion 09-02: disclose no more than reasonably necessary in withdrawal
• Ariz. Ethics Opinion 00-11: attorney may refuse subpoena until final order
• D.C. Ethics Opinion 288: lawyer subpoenaed by Congress may, but is not required to, produce file
• R.I. Ethics Opinion 98-02: duty to object, must comply with final order
• Mass. Ethics Opinion 94-7: lawyer must resist Form 8300 identification until court order

See also

• CA COPRAC Op. 2016-195: Confidentiality of Public Info
• CA COPRAC Op. 2019-198: Settling Before Withdrawal
• CA COPRAC Op. 2019-200: Perjured Testimony
• CA COPRAC Op. 2021-206: Colleague Impairment

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original PDF: https://www.calbar.ca.gov/sites/default/files/portals/0/documents/ethics/Opinions/CAL-2015-192-[12-0001].pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2015-192

ISSUE: What information may an attorney ethically disclose to the court to explain her need to withdraw from a representation – particularly in the face of an order to submit to the court, in camera or otherwise, the substance of the attorney-client communications leading to the need to withdraw?

DIGEST: An attorney may disclose to the court only as much as is reasonably necessary to demonstrate her need to withdraw, and ordinarily it will be sufficient to say only words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney-client relationship. In attempting to demonstrate to the court her need to withdraw, an attorney may not disclose confidential communications with the client, either in open court or in camera. To the extent the court orders an attorney to disclose confidential information, the attorney faces a dilemma in that she may not be able to comply with both the duty to maintain client confidences and the duty to obey court orders. Once an attorney has exhausted reasonable avenues of appeal or other further review of such an order, the attorney must evaluate for herself the relevant legal authorities and the particular circumstances, including the potential prejudice to the client, and reach her own conclusion on how to proceed. Although this Committee cannot categorically opine on whether or not it is acceptable to disclose client confidences even when faced with an order compelling disclosure, this Committee does opine that, whatever choice the attorney makes, she must take reasonable steps to minimize the impact of that choice on the client.

AUTHORITIES INTERPRETED: Rules 3-100 and 3-700 of the Rules of Professional Conduct of the State Bar of California. Business and Professions Code sections 6068(b), 6068(e)(1), and 6103.

STATEMENT OF FACTS

CEO is the Chief Executive Officer of Client, a closely held corporation. Client hired Attorney to prosecute a trade secret misappropriation case against a former employee of Client who left Client to join Client's primary competitor ("Competitor"). Near the close of discovery, about six weeks before trial, Attorney learns some information that causes her to conclude Client's claim lacks probable cause. Attorney meets with CEO to discuss this new information and advises CEO that Client should dismiss the claim, and that Attorney may not ethically continue to prosecute the claim for Client. CEO tells Attorney he does not want to do anything until the day before trial at the earliest because that is the date of a big trade show in which Client and Competitor both will be participating. CEO further tells Attorney that he does not really care about winning or losing the lawsuit, but that he merely wants to keep the lawsuit going in order to damage Competitor's public image leading up to the trade show.

Attorney advises CEO she cannot continue to represent Client in a lawsuit in which the Client's position lacks probable cause and the primary purpose is to harass or maliciously injure another person or company. Under such circumstances, Attorney tells CEO, she would have a mandatory duty to withdraw from the representation. CEO becomes angry and says, "I am paying you a lot of money, and I expect you to do what I say." Attorney leaves the meeting and says she will call CEO the next day after they both have slept on the issue.

The next day, Attorney phones CEO and asks him if he has reconsidered whether to continue prosecuting the case. Again, CEO becomes angry and says he does not want to hear another word about dropping the case until after the trade show. Attorney then informs CEO that she will need to withdraw from the representation, and asks CEO if Client will consent to the withdrawal. CEO refuses to consent, saying he would not be able to find another lawyer this close to trial.

Attorney immediately begins drafting a motion to withdraw, which she convinces the court to hear on shortened time. In the moving papers, Attorney states, "Ethical considerations require my withdrawal as counsel for Client."

Client appears at the hearing to oppose Attorney's motion. The judge asks Attorney to explain the reason for her need to withdraw. The following colloquy ensues:

Attorney: My duty of confidentiality to Client prevents me from saying more.
Judge: I'm concerned about potential prejudice to Client, so you'll have to give me a little more information.
Attorney: Your Honor, I have an irreconcilable conflict of interest with Client that precludes my continued representation. My duty of confidentiality to Client prevents me from saying any more.
Judge: Here is what we are going to do. You are ordered to provide me a detailed declaration, filed under seal, about what your client said to you that makes you think you need to withdraw. Then, one week from today you will appear in my chambers for an in camera hearing to discuss the declaration.

DISCUSSION

The Statement of Facts raises several issues and pits certain ethical duties of Attorney directly against her other ethical duties. First, to the extent Attorney knows or should know – as is apparent from the Statement of Facts – that Client is pursuing the lawsuit "for the purpose of harassing or maliciously injuring any person," Attorney has a mandatory duty to withdraw. Rule 3-700(B)(1). Second, in seeking to withdraw, Attorney must take reasonable steps to avoid reasonably foreseeable prejudice to Client's rights, pursuant to rule 3-700(A)(2). Third, in asking the court for permission to withdraw, Attorney must continue to uphold her duty of confidentiality under rule 3-100 and Business and Professions Code section 6068(e)(1).

1. Duty To Withdraw

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." Thus, in light of the Statement of Facts, Attorney correctly concluded that she had a mandatory duty to withdraw.

Rule 3-700(A)(2) 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 ("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." (Original italics)); 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. 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).)

Here, both Client and the court have raised concerns about potential prejudice to Client should Attorney withdraw. In particular, trial is only six weeks away, and it is unclear whether Client will be able to obtain substitute counsel. Thus, Attorney's duty to withdraw appears to clash with her separate duty to ensure that Client suffers no prejudice as a result of her withdrawal. Ultimately, it will be the court that weighs Attorney's duty to withdraw against prejudice to Client. See Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4. Attorney, however, must take reasonable steps to convince the court of her need to withdraw, all the while taking reasonable steps to minimize the prejudice to Client and to maintain her duty of confidentiality under rule 3-100(A) and Business and Professions Code section 6068(e)(1).

2. Duty of Confidentiality

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.

In Aceves v. Superior Court (1996) 51 Cal.App.4th 584, the Court of Appeal reversed the trial court's denial of a public defender's motion to withdraw. The court held that "[w]here 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." Id. at p. 592. The Aceves court relied on Leversen v. Superior Court (1983) 34 Cal.3d 530, where the California Supreme Court criticized a trial court's failure to accept the attorney's representation that a conflict existed, and on Uhl v. Municipal Court (1974) 37 Cal.App.3d 526.

In Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, the court cited Aceves, Uhl, and Leversen approvingly, but distinguished those cases where the attorney provided no information whatsoever about the nature of the alleged conflict. The Manfredi court noted, "Counsel would have done well to give the court some information as to the shape and size of the conflict here." Id. at p. 1134.

The non-California authorities are consistent: ABA Model Rule 1.16 Comment [3] ("The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient."). ABA Model Rule 3.3 Comment [15] ("In connection with a request for permission to withdraw that is premised on a client's misconduct, a lawyer may reveal information relating to the representation only to the extent reasonably necessary to comply with this Rule or as otherwise permitted by Rule 1.6."). See also Or. Formal Opn. No. 2011-185; Ariz. Ethics Opn. No. 09-02.

a. In Camera Review

Whether an attorney can satisfy her obligations under rule 3-100 by providing the court more detailed information in camera was an open issue in Aceves. The committee concludes that in camera review of privileged communications is not permitted. Evidence Code section 915(a) prohibits a court from requiring disclosure of information claimed to be privileged in order to rule on the claim of privilege. 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. By extension, a court may not review information that unquestionably is privileged for purposes of ruling on a motion to withdraw.

For purposes of ruling on a claim of privilege, an attorney may testify about certain circumstances giving rise to the privileged communication – just not to the communication itself. Costco, supra, 47 Cal.4th at p. 737. The duty of confidentiality, however, is broader than the privilege, and may prevent or limit an attorney from testifying in detail even about the circumstances of a confidential communication where doing so would disclose client "confidences" or "secrets." See Cal. State Bar Formal Opn. Nos. 1993-133, 1988-96, 1986-87, 1981-58, and 1980-52.

b. Court Order To Disclose

In the Statement of Facts, the court ordered Attorney to provide additional facts in camera. As discussed above, Attorney may be able to tell the court some of the circumstances leading to her request to withdraw, but she must not cross the line and disclose confidential client information. To the extent the court expressly orders Attorney to disclose any confidential client information, Attorney faces a dilemma: disclose confidential client information or risk disobeying a court order, and possibly being held in contempt. In such a case, we believe Attorney has a duty to take all reasonable steps to avoid the dilemma – either by obtaining Client's consent to the in camera disclosure or some other compromise measure, or by filing a writ petition with the Court of Appeal challenging the court's order. In short, Attorney must exhaust all reasonable measures short of disclosing confidential client information against Client's wishes before making the ultimate decision of whether to disclose confidential information or disobey the court's order. If Client will not consent to the in camera disclosure, the court will not stay its ruling pending the filing of a writ petition, and Attorney cannot find a way to satisfy both Client and the court, then Attorney ultimately must choose between the important and conflicting obligations of protecting Client's confidential information and obeying a court order.

With one exception, no California case or ethics opinion directly addresses this dilemma. Attorneys must decide whether to obey the court order, or whether to continue to protect client confidences, and the Committee cannot categorically opine which ethical obligation should prevail.

Business and Professions Code section 6103 states that an attorney's "willful disobedience or violation of an order of the court requiring him to do or forbear an act . . . which he ought in good faith to do or forbear. . . constitute[s] [cause] for disbarment or suspension." However, section 6103 expressly applies only to orders with which the attorney "ought in good faith" comply. It is certainly not obvious that an attorney ought in good faith comply with an order compelling a violation of her duty to maintain client confidences. Thus, this Committee cannot conclude that section 6103 by itself justifies disclosure under the circumstances.

Although this Committee is unable to categorically opine on how an attorney should respond to an order compelling disclosure of confidential information after she has exhausted all reasonable efforts short of disobedience, this Committee can conclude that an attorney indeed must exhaust all reasonable efforts before concluding that the only options remaining are disclosing confidential information or disobeying a court order. As discussed above, the attorney should seek appropriate relief from the court's order, including filing a writ petition. She also should renew efforts to reach a compromise with the client and the court, which may include further attempts to obtain the client's consent to the withdrawal (albeit with full disclosure to the client of any adverse consequences of such disclosure). To the extent the duty to withdraw is a permissive one (unlike the mandatory one in our hypothetical facts), then the attorney should consider withdrawing the motion to withdraw.

In addition, whichever choice the attorney makes, she must take reasonable steps to avoid prejudice to the client. Thus, if the attorney opts to obey the court order and disclose the client information, she must take all reasonable steps to minimize the harm to the client caused by such disclosure. For example, in the hypothetical, Attorney knows that Client's case is likely to be compromised if the trial judge learns that CEO is pursuing the case for improper purposes. Thus, Attorney should consider, for example, asking the court to appoint a judge pro tem or transfer the withdrawal motion to another judge, thus allowing the disclosure – if one ultimately is made – to be made to a judge other than the trial judge. On the other hand, if the attorney refuses to disclose confidential information, even when faced with the court's order to disclose, the attorney must take all reasonable steps to mitigate any potential harm to the client.

CONCLUSION

When an attorney knows or should know that her client is pursuing an action without probable cause and for the purpose of harassing or maliciously injuring another person, the attorney has a mandatory duty to withdraw from the representation if efforts to remonstrate fail. To the extent the attorney cannot obtain the client's consent to the withdrawal, the attorney will need to file a motion to withdraw, taking reasonable steps to avoid reasonably foreseeable prejudice to the client. In attempting to justify the need to withdraw, the attorney may not disclose client confidences. Ordinarily, for purposes of the motion to withdraw, it will be sufficient to state words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney-client relationship. To the extent such general language is deemed insufficient by the court, however, the attorney may only provide additional background information, but may not disclose confidential communications or other confidential information – either in open court or even in camera. If, notwithstanding all efforts by the attorney to prevent the court from entering an order compelling disclosure – including by requesting a stay of the order to allow time to file a writ petition – the court nonetheless orders disclosure, this Committee cannot categorically opine on how the attorney must choose between her competing duties to maintain the client's confidences and to obey the court's order. Whatever the attorney's decision, however, she must take reasonable steps to minimize the impact of that decision on the client.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Trustees, any persons, or tribunals charged with regulatory responsibilities, or any member of the State Bar.

[Publisher's Note: Internet resources cited in this opinion were last accessed by staff on February 9, 2015. A copy of these resources is on file with the State Bar's Office of Professional Competence.]