At least one court apparently thinks so. In In re Gonzalez, the District of Columbia Court of Appeals directed D.C. bar counsel to issue an informal admonition to counsel who had disclosed, in his motion to withdraw from representation, confidential documents detailing the conflict with his client that buttressed the motion. In so ruling, the court quoted with approval the analysis of the bar hearing committee that had considered the matter in the first instance: “‘[T]here is no reason those documents could not have been provided to the [Circuit] Court in camera, so that the [Circuit Court] could be satisfied that the motion had a factual foundation, without harm to the client’s interests.’” (Brackets in original.)
That solution was squarely rejected in California, however, where the Standing Committee on Professional Responsibility and Conduct, in Formal Opinion No. 2015-192, concluded that “[i]n attempting to demonstrate to the court her need to withdraw, an attorney may not disclose confidential communication with the client, either in open court or in camera.” Inasmuch as ABA Model Rule 8.5(b) and D.C. Rule 8.5 provide that a D.C. lawyer trying a case in California would be subject to the ethical requirements of both jurisdictions, the apparent D.C. solution offers no comfort.
The California opinion is also instructive for its failure to answer the question posed. In its concluding paragraphs, the Committee wrote:
If, notwithstanding all efforts by the attorney to prevent the court from entering an order compelling disclosure [of confidential information as the grounds for withdrawal of representation]—including by requesting a stay of the order to allow time to file a write 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.
In other words, if you do not have the good fortune to be before an understanding judge, you may be relegated to the solace, if any, found in the pages of Joseph Heller’s masterpiece Catch 22. Lawyers must evaluate on a case-by-case basis how much they can disclose to the court within the conflicting confines of the rules quoted above and the judge’s reaction to their proffer, and then risk denial of the motion, or a grievance from the client, if they say too little or too much.