When moving to withdraw, can a lawyer file the client's own court papers from another case to support the motion, even if doing so makes the client look unstable?
NY State Bar Ethics Opinion 1057: Disclosing client information on a motion to withdraw
Short answer: How much a lawyer may reveal about a client when moving to withdraw depends on whether the information is confidential under Rule 1.6; the lawyer should disclose no more than necessary, may rely on a statement that "professional considerations" require withdrawal when that suffices, and if ordered to disclose may comply to the extent reasonably necessary, seek in camera treatment, and appeal an order to reveal privileged material.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association'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. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A lawyer represented a client in state-court litigation. The client insisted the lawyer file what the lawyer considered frivolous petitions based on allegations the client had made in separate federal litigation against members of the judiciary and another lawyer. The lawyer wanted to move to be relieved as counsel and asked whether he could use the client's own federal-court filings to support the motion, even though those documents might portray the client as "incompetent or unstable" and prejudice him (¶¶ 1-2).
The committee assumed grounds for withdrawal existed, noting that filing frivolous allegations would violate Rules 3.1(a) and 3.4(d)(1) (¶ 3). It first asked whether the client's other-court filings were "confidential information" under Rule 1.6, concluding they were unless their existence was "generally known" in the community or profession; information is not generally known merely because it is in a public file, citing N.Y. State 991 (2013), so absent media coverage or the client's own wide publicity the documents were confidential (¶¶ 7-9). The committee then laid out five considerations. First, whether withdrawal is mandatory (Rule 1.16(b)) or permissive (Rule 1.16(c)); permissive withdrawal gives less justification to reveal confidences, citing N.Y. State 681 (1996) (¶¶ 10-11). Second, whether withdrawal can be accomplished without significant disclosure: under Rule 1.16 Comment [3], a court ordinarily should accept "professional considerations require termination" without demanding the underlying facts, and where that suffices the lawyer should disclose no more, even of non-confidential information (¶¶ 12-15).
Third, whether the court orders disclosure: Rule 1.6(b)(6) permits disclosure to comply with a court order, but only to the extent reasonably necessary, and the exception does not apply if the court merely withholds permission without ordering disclosure (¶¶ 16-17). Fourth, the circumstances of disclosure: the lawyer should seek an in camera examination to limit the harm, and may decline immediate compliance and appeal, and should appeal if the information is privileged, citing N.Y. State 681 and N.Y. State 528 (1981) (¶¶ 18-19). Fifth, whether the client gives informed consent after the lawyer explains the material risks (¶ 20).
In practice
Under the New York rules as they stood at the time of the opinion, the committee gave a sequenced framework rather than a yes-or-no answer on using the client's other-court filings. The threshold question is whether those filings are confidential under Rule 1.6; the committee held they generally are, because being in a public file is not the same as being "generally known." From there the governing principle is minimal disclosure: if a bare statement that professional considerations require withdrawal will satisfy the court, the lawyer reveals nothing more, and even non-confidential information should be withheld where withdrawal can be accomplished without it. Only a court order (not a mere refusal to grant the motion) triggers the Rule 1.6(b)(6) exception, and even then disclosure is limited to what is reasonably necessary, with in camera treatment and, for privileged material, an appeal as the protective options. Client consent after a full explanation of the risks is the remaining route.
Common questions
Q: Are a client's filings in another lawsuit confidential?
A: Generally yes. The committee concluded such filings are confidential information under Rule 1.6 unless their existence is "generally known," which public availability alone does not establish (¶¶ 8-9).
Q: Does the lawyer have to tell the court why he is withdrawing?
A: Usually not in detail. The committee concluded a court ordinarily should accept that "professional considerations require termination," and where that suffices the lawyer should disclose no more (¶¶ 12-14).
Q: What if the court orders the lawyer to disclose the information?
A: Then Rule 1.6(b)(6) permits compliance to the extent reasonably necessary; the committee said the lawyer should seek in camera review and, if the material is privileged, should appeal the order (¶¶ 16-19).
Q: Can the client consent to the disclosure?
A: Yes. The committee concluded the lawyer may disclose if, after the lawyer explains the material risks, the client gives informed consent (¶ 20).
Background and rules framework
The opinion interprets New York Rule 1.16 (declining or terminating representation), Rule 1.6 (confidentiality, including the court-order exception in 1.6(b)(6)), and Rules 3.1 and 3.3 (meritorious contentions and candor), corresponding to ABA Model Rules 1.16, 1.6, 3.1, and 3.3. The analysis turns on whether the information is confidential, whether withdrawal can be accomplished without disclosing it, and how a court order changes what the lawyer may reveal.
Citations and references
Rules of Professional Conduct:
- MR 1.16 / NY RPC 1.16(b), (c), (e) (mandatory and permissive withdrawal; avoiding prejudice)
- MR 1.6 / NY RPC 1.6 (confidentiality; "generally known"; court-order exception)
- MR 3.1, MR 3.3 / NY RPC 3.1, 3.3 (meritorious contentions; candor to the tribunal)
Cases:
- Jamaica Pub. Serv. v. AIU Ins., 92 N.Y.2d 631 (1998), "generally known" information
Other opinions cited:
- N.Y. State 991 (2013): information is "generally known" only if known to a sizeable share of the relevant community
- N.Y. State 681 (1996): permissive-withdrawal grounds may not justify disclosing confidences; appeal of disclosure orders
- N.Y. State 528 (1981): a lawyer may postpone disclosure pending appeal of an adverse privilege ruling
See also
- NY State Bar Op. 1070: Confidentiality and file access among joint clients
- NY State Bar Op. 1061: Reporting a client's payment history to a database
Source
- Landing page: https://nysba.org/ethics-opinion-1057/