Ethical Issues in Moving to Withdraw: The Limits of In Camera Hearings

Brandon Krueger is a shareholder with Sall Spencer Callas & Krueger in Laguna Beach, California. His practice focuses on legal malpractice litigation and attorney-client fee disputes. He can be reached at bkrueger@sallspencer.com. The opinions expressed are his own.

Imagine a magical ritual that could temporarily relieve an attorney of his or her obligations to jealously guard client secrets and privileged attorney-client communications, which would allow disclosure that would otherwise be ethically and statutorily prohibited. Does that sound far-fetched? Unfortunately, too many lawyers (and judges) mistakenly believe such a proceeding exists: the in camera hearing.

This misunderstanding most commonly arises in the context of a motion to be relieved as counsel, where many practitioners believe that they may reveal confidential or privileged information relating to their need to withdraw, so long as such disclosures are made in camera. These practitioners believe Manfredi & Levine v. Superior Court[1]  actually authorizes such in camera disclosures.

To the contrary, in camera proceedings are not magic and do not bypass an attorney's statutory and ethical duties of confidentiality. Consequently, the dilemmas often faced in the context of moving to withdraw are not so easily resolved as many attorneys would like to believe.

Confidential Reasons for Withdrawal

It is an unwelcome situation, but not particularly uncommon: a lawyer comes to the conclusion that he or she has no choice but to withdraw from representing a client—that withdrawal is mandatory.[2] However, an attorney shall not withdraw from the representation without the permission of the tribunal, where such permission is required.[3] Thus, the attorney must convince the court of the appropriateness of granting her motion.

An ethical dilemma can arise where a practitioner must decide what she may or may not divulge to the court regarding the necessity of her withdrawal. Suppose, for example, that in the midst of litigation the client confides to his attorney facts which vitiate probable cause, or which reveal that the attorney has an unwaivable conflict.[4] What may an attorney ethically divulge to convince the court of the necessity of withdrawal?

Importance of Good Faith

Most attorneys understand that their ethical duties prohibit public disclosure of confidential or privileged information in their declaration in support of their motion to withdraw.[5] Most intuitively hew to a cautious approach: simply informing the court (via declaration) that withdrawal is mandatory, and that the attorney's ethical duties prohibit further elaboration. When there is no prior history that casts suspicion upon the attorney's good faith, courts have held that even bare bones statements should suffice to establish a basis for withdrawal. For example, in Leversen v. Superior Court,[6] the California Supreme Court held that "[h]aving accepted the good faith and honesty" of the attorney's conclusory statements that a conflict of interest existed, the trial court was bound to rule that the conflict had been established.[7] Similarly, Aceves v. Superior Court held that where "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." [8]

In other words, good faith goes a long way, mitigating in favor of granting withdrawal even where very little detail can be provided, consistent with counsel's ethical duties.[9]

Sometimes, however, good faith is in short supply. Whatever the cause, a court that doubts an attorney's truthfulness might demand more than a conclusory statement that withdrawal is necessary, refusing to grant a motion to be relieved unless the attorney provides more detail. What is an attorney to do then?

This is where a misunderstanding of in camera hearings has historically provided some courts and lawyers with a convenient, albeit illusory, escape hatch.

Manfredi Often Misunderstood

In Manfredi, the Manfredi firm moved to withdraw by telling the court only that it had received unsolicited and confidential information which led it to believe that continuing in the representation would be unethical. However, the prior case history led the court to doubt Manfredi's good faith. As the California Court of Appeal wrote: "[t]o put it charitably, the trial court of was skeptical of Manfredi's motive."[10] Indeed, the trial court had specifically accused Manfredi of "every [delaying] tactic known to man."[11] Consequently, the trial court demanded more detail regarding the purported basis for withdrawal, and Manfredi refused, claiming that client confidentiality prevented it from providing more detail.[12] The trial court denied the motion to withdraw, and Manfredi sought relief via writ.

The court of appeal approvingly reviewed existing case law (including Leversen and Aceves), holding that where there is no reason to doubt counsel's good faith, even bare bones assertions of conflict should be accepted to support withdrawal.[13] Notwithstanding those observations, the court of appeal affirmed the trial court's duty to explore an asserted conflict, and an attorney's corresponding duty to respond as fully as possible "within the confines of privilege."[14] Ultimately, the court of appeal denied the writ, focusing on Manfredi's refusal to provide any description of the conflict, coupled with the trial court's "jaundiced eye" view of Manfredi's portrayal of its ethical dilemma.[15]

Manfredi provides important analysis of many types of conflicts that may arise, and which may require withdrawal. However, Manfredi is often misunderstood because it goes on to suggest that Manfredi could have requested an in camera hearing which would have "afforded the opportunity to furnish details on the conflict and to provide the court with sufficient information" supporting the withdrawal, and suggested that if Manfredi's motion is re-filed the trial court would provide an in camera hearing if requested.[16] Manfredi has been misread by many attorneys as authorizing attorneys to make disclosures in camera which would otherwise be prohibited by an attorney's ethical duty of confidentiality.

A subsequent case, Forrest v. State of California Dept. of Corporations,[17] (disapproved on other grounds by Shalant v. Girardi [18]) has been similarly misread for the same proposition, merely because it noted that the trial court had held an in camera hearing in order to protect attorney-client privileged matters.[19]

No In Camera Magic

Perhaps it is understandable that attorneys torn between their ethical duties of confidentiality and a mandatory duty to withdraw would be inclined to read Manfredi or Forrest to permit disclosure of confidential information in camera. But such an interpretation is wishful thinking, not a correct analysis of law.

It is instructive to look at what Manfredi does not address. It is entirely silent as to what, exactly, may actually be disclosed in camera. Manfredi does not hold that an attorney's duty of confidentiality and/or duty to guard privilege are lessened or affected by an in camera hearing. To the contrary, Manfredi approvingly quotes Aceves for the proposition an attorney must describe the basis for withdrawal as fully as possible "within the confines of privilege." [20] Forrest says even less. It merely recites without analysis what proceedings occurred before the trial court.

Attorneys must bear in mind that the judge is a third-party to the attorney-client relationship, and there is no codified exception that permits disclosure in camera. Critically, neither Manfredi nor Forrest actually holds that in camera disclosure of confidential information satisfies an attorney's ethical and/or statutory duties. In the absence of authority permitting disclosure, it is incorrect to conclude that an in camera hearing somehow bypasses the Business and Professions Code or Rules of Professional Conduct. Consistent with this conclusion, COPRAC has opined that an attorney is not free to disclose client confidences without the client's consent, even in an in camera hearing.[21] (That opinion left open the issue of what an attorney is to do if ordered to disclose confidential information in camera.)

In fact, there is no magical "in camera exception" to an attorney's duty to maintain privilege and client confidences. Accordingly, attorneys must not be lured into error by the illusory promise of an ethical shortcut.

[1] Manfredi & Levine v. Superior Ct, (1998) 66 Cal.App.4th 1128.

[2] CRPC 3-700(B).

[3] CRPC 3-700(A)(1).

[4] CRPC 3-700(B)(1) and (2).

[5] CRPC 3-100 (A); Bus. & Prof. Code § 6068(e)(1).

[6] Leverson v. Superior Ct., (1983) 34 Cal.3d 530).

[7] Id., at 539.

[8] Aceves v. Superior Ct, (1996) 51 Cal.App.4th 584 at 592 (emphasis added).

[9] Note: both Leverson and Aceves arose in the criminal context, and thus addressed constitutional considerations regarding the right to counsel which are not present in the civil context.

[10] Manfredi at 1131.

[11] Id.

[12] Id.

[13] Id. at 1133.

[14] Id. at 1134.

[15] Id. at 1136.

[16] Id. at 1136-1137.

[17] Forrest v. Cal. Dept. of Corporations, (2007) 150 Cal.App.4th 183.

[18] Shalant v. Girardi, (2011) 51 Cal.4th 1164.

[19] Forrest at 194-195.

[20] Manfredi, supra 66 Cal.App.4th at 1134.

[21]Cal. St. Bar. Formal Op. No. 2015-192, http://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/CAL%202015-192%20[12-0001].pdf