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Business Law Today

September 2022

September 2022 in Brief: Legal Opinions & Ethics

Keith Robert Fisher and Christina Houston

September 2022 in Brief: Legal Opinions & Ethics Göçmen

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Ethics and Professional Responsibility

Need Court Approval for Withdrawal and Court Won’t Act? Consider Mandamus

By Keith R. Fisher

Model Rule 1.16(b) enumerates the bases upon which a lawyer may seek to withdraw from representing a client. These include (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer’s services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists.

Sometimes, as noted in Model Rule 1.16(c), permission of a tribunal must be obtained—typically where a lawyer seeks to withdraw from representing the client in pending litigation. Seeking such permission is not without risk, as the lawyer must continue representing the client if ordered to do so notwithstanding that solid ethical grounds exist for terminating the relationship.

But what if months go by and the tribunal does nothing? Inability to withdraw is not only discomfiting for the lawyer but can have a significant adverse impact on the client’s best interests. Failure by a court to rule on a withdrawal motion is obviously not an appealable order, so the only recourse is mandamus.

Recently, a unanimous decision by the Court of Appeals of Texas, while not ruling on the merits of a withdrawal motion and declining to create a bright line test, did grant a writ of mandamus ordering the trial judge promptly to decide the withdrawal motion. The court noted Texas precedent for the proposition that six months is sometimes regarded as a reasonable time for a judge to decide a motion and delays in excess of that period may warrant mandamus relief. The key facts identified by the court were (A) that the lawyer had filed a motion to withdraw ten months earlier, (B) that hearings (at least three, and possibly four of them, apparently!) had been held on the motion, but (C) six months had elapsed since then without a decision. Those facts, in the court’s view, “present[ed] an unreasonable time warranting mandamus relief.”

New Apps on Your Cell Phone

By Keith R. Fisher

There are two types of mobile phone “app” users. Some, when downloading a new app, reflexively permit it to access the contact list; others, just as reflexively, refuse to permit such access. Lawyers may be well advised to be in the second category—at least where their contact lists contain the names of current, prior, or future clients.

Model Rule 1.6(c) requires a lawyer to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Note that Model Rule 1.6 does not specify that the information has to be “confidential”: Subsection (a)’s language simply proscribes, in the absence of informed consent (defined in Rule 1.0(e)) or one of the exceptions enumerated in subsection (b), revealing any information “relating to the representation of a client.” That information can include client names and contact information. Indeed, a typical client cell phone contact entry contains not just the individual’s name, work phone number, and e-mail address, but also frequently a company name and address, residential telephone and e-mail information, residential address, or other personal information.

Model Rule 1.6(c) is a gloss on the prohibition in 1.6(a) against “reveal[ing] information relating to the representation of a client” in the absence of circumstances identified in 1.6(b). Comment [18] explains that Rule 1.6(c) “requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure . . . .” The requirement of competence, inscribed in Model Rule 1.1, entails, as explained in Comment [8] thereto, “keep[ing] abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” At last count 38 states had adopted this language verbatim or with minor wording changes, and several others have issued formal opinions to the same effect. See also ABA Formal Op. 477, as revised in Formal Op. 477R.

Recently, New York Ethics Op. 1240 underscored the need for caution when downloading cell phone apps. The opinion built upon a 2016 opinion addressing whether it was permissible to disclose to a potential client the names of actual clients the lawyer had previously represented in the same practice area. To answer that, it was necessary to ascertain whether the names of current or past clients constituted “confidential information” as defined in Rule 1.6(a). The 2016 opinion decided that in the affirmative if either (A) the clients have requested keeping their names confidential, or (B) even if no such request has been made, the fact of the representation is not public knowledge or disclosure would otherwise “likely . . . be embarrassing or detrimental to the client.” The latter category was thought to consist primarily of matters “where the representation involves or involved criminal law, bankruptcy, debt collection or family law.”

Notably, New York’s version of Rule 1.6 contains some significant differences from the Model Rule. The former only proscribes “knowingly” revealing “confidential information,” a term it expressly defines as “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.” Excluded from this definition are: “(i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.”

New York Op. 1240 identified the following as relevant factors a lawyer should consider in determining whether any contacts are confidential: (i) whether the contact information identifies the smartphone owner as an attorney, or more specifically identifies the attorney’s area of practice (such as criminal law, bankruptcy law, debt collection law, or family law); (ii) whether people included in the contacts are identified as clients, as friends, as something else, or as nothing at all; and (iii) whether the contact information also includes email addresses, residence addresses, telephone numbers, names of family members or business associates, financial data, or other personal or non-public information that is not generally known.

If the lawyer determines that any such contact information is confidential, the opinion concludes, “then the lawyer may not consent to share contacts with a smartphone app unless the lawyer concludes that no human being will view that confidential information, and that the information will not be sold or transferred to additional third parties, without the client’s consent.”