Quandaries & Quagmires: Client confidentiality and motions to withdraw

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ABA Formal Opinion 519, released Dec. 3, 2025, is titled “Disclosure of Information Relating to the Representation in a Motion to Withdraw from a Representation.”

Opinion 519 addresses the problems arising when a client will not consent to disclosing information relating to the representation in support of a lawyer’s motion to withdraw from a litigation pending in court and there is no applicable exception to the duty of confidentiality. The opinion allows lawyers to cite “professional considerations” in support of the motion but concludes, “Ultimately, the lawyer’s paramount duty is to preserve client confidentiality, even at the risk that the tribunal may deny the motion to withdraw.” The opinion maintains this conclusion even in situations where continued representation will result in violation of Rules other than confidentiality.

Opinion 519 identifies two ways in which the problem is ameliorated. First, both the confidentiality rule itself and law outside the rules include several confidentiality exceptions.¹ Second, because one of these exceptions is disclosure mandated by court order, judges may, and often should, ask for limited disclosures so that the judge can evaluate the merits of the withdrawal motion.

This article describes Opinion 519’s analysis and then addresses several questions:

• Is Opinion 519’s elevation of the confidentiality rule over all other rules and circumstances well grounded?
• Does taking confidentiality as a “paramount” rule, answer the question of how to deal with a litigation conflict of interest?
• Are there additional confidentiality exceptions beyond those cited by Opinion 519?
• What special considerations are there for a Minnesota lawyer?
• How should the Rules handle “damned if you do or don’t” situations?

Governing Rules and Opinion 519’s Conclusions. Four Rules of Professional Conduct (“Rules”) shape the Opinion 519 analysis. The cited portions of the rules below are the same in their ABA Model and Minnesota formats.

First, Rule 1.16(a) provides, “a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law … ” The most common violation of this type involves conflicts of interest.

Second, Rule 1.16(c) includes the provision, “A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.”

Third, Rule 1.6(a) provides, “Except when permitted under paragraph (b), a lawyer shall not knowingly reveal information relating to a client.” Minnesota Rule 1.16(b) has more exceptions to confidentiality than its Model Rule counterpart.

Fourth, 1.6(b) provides, “A lawyer may reveal information relating to the representation if … the lawyer reasonably believes the disclosure is necessary to comply with other law or a court order.”

Opinion 519 identifies several circumstances in which a lawyer may offer information supporting a motion to withdraw. Opinion 519 states, “The existence of these options justifies the drafters’ decision not to dilute our fundamental confidentiality requirement with an exception in this situation.”

1. The lawyer communicates information that is not confidential, e.g. that a health problem impairs the lawyer’s ability to continue representation.
2. The client gives informed consent to disclose information, e.g. that the client has discharged the lawyer.
3. One of the Rule 1.6(b) exceptions to confidentiality applies, especially disclosure allowed “to comply with other law or a court order.” “Other law” has been interpreted to mean “law other than” the Rules.² At least in some places, Opinion 519 appears to interpret “order” broadly to include a court “inquiry.”³
4. Rules 3.3, 1.13, and 1.14 permit or require disclosure in certain circumstances. If these circumstances exist, these rules “may conceivably permit disclosures in support of a withdrawal motion …” For example, Rule 3.3 mandates remedial measures, including disclosure where necessary, when a lawyer knows that false material evidence has been offered.
5. Outside law may require disclosure to the court of lawyers’ conflicts, e.g. in criminal cases, class actions, and bankruptcy proceedings.

The outside law exceptions could be expanded. For example, Rule 11, R. Civ. Proc., requires a certification as to the apparent merits of a pleading. If a lawyer learns facts that make the certification untenable, the lawyer should correct the certification and then may cite the correction as a basis for a withdrawal motion. In addition, Minn. Stat. §§ 481.07, 481.071 provide that an attorney who uses “any deceit” in a litigation matter commits a misdemeanor and is liable for treble damages. If continuing a representation involves “any deceit,” disclosure reasonably necessary to support a withdrawal motion should be permitted.

Opinion 519 opines, “We recognize that in rare situations in which Rule 1.16(a) requires a lawyer to seek to withdraw, no applicable exception to the duty of confidentiality will enable the lawyer to explain the basis for the withdrawal motion to the court’s satisfaction, and a lawyer whose barebones withdrawal motion is denied will be compelled to violate a Rule by continuing the representation.” Opinion 519 applies this recognition particularly to conflicts of interest. In such matters, “the duty of confidentiality is paramount.”

Is Confidentiality Always “Paramount?” Two Hypotheticals. Why is the duty of confidentiality paramount over all other duties under the Rules? Opinion 519 does not say, but ABA Formal Opinions generally have taken similar positions. It may be argued that, on the contrary, when a lawyer has no choice but to violate one Rule or another, the lawyer should consider all factors, including the comparative seriousness of the violations, the relative harm to clients, and the prejudice to the administration of justice. Two hypotheticals will illustrate why an all-the-factors test is superior to a confidentiality-is-paramount principal for dealing with serious conflicts and motions to withdraw.

Consider Hypothetical #1. A lawyer (L) represents joint clients A and B just as major litigation X v. A and B is beginning. A and B have exposure to major damages and a lengthy trial is scheduled. Although A and B initially regarded their interests as harmonious, they have fallen to rancor and dispute. L can no longer represent them jointly without violating Rule 1.7. A motion to withdraw based on “professional considerations” has been argued and from the bench the judge is making it clear she intends to deny the motion without further inquiry. May L state, “Your honor, we wish to supplement the motion by representing to the court that continued representation will be prejudicial to the administration of justice?” Opinion 519 would say “no.”

If L cannot withdraw, L will be in the nearly impossible position of deciding how to act on contradictory instructions on the goals and means of representation from A and B. A verdict against A and B may well result in lawsuits against L and between A and B. Far more confidential information will be disclosed in these suits than in L’s statement about prejudice to the administration of justice. Moreover, the values of loyalty and zeal, which undergird the conflicts rules, and the value of promoting the administration of justice, will be much more gravely harmed by the representation than the value of confidentiality would be by the lawyer’s statement.

Consider another facet of Hypothetical #1. If A and B had become disputatious before trial, and L could not resolve their disputes, the law of fiduciary duty would have required L to withdraw. Under Rule 1.6(b) the common law of fiduciary duty is “other law,” that is law outside the rules that provides an exception to confidentiality. Fiduciary law is an important source of conflicts law. In Hypothetical #1 A and B became disputatious just after trial began. The outside law of fiduciary duty still requires L to withdraw and Rule 1.6(b) allows L to make disclosures to comply with fiduciary law. Here the disclosures necessary for withdrawal are disclosures made to the court to inform the court of the reasons for withdrawal. In short, the outside law of fiduciary duty will frequently provide an “other law” exception to confidentiality in situations in which a lawyer would otherwise be trapped into continuing representation by Opinion 519’s analysis of conflicts. If this conclusion seems doubtful, recall that ABA Formal Opinion 11-460 opines that Rule 1.6(b) allows disclosure where the lawyer “reasonably believes it is necessary to do so to comply with the relevant law, even if the legal obligation is not free from doubt.”

To illustrate a second problem with Opinion 519’s claim of paramount confidentiality, consider Hypothetical #2. A lawyer (L) represents C v. D in litigation. As discovery proceeds, L recognizes that C’s claim should be primarily made against E. However, L’s firm represents E, and the firm has material confidential information that a lawyer without conflicts would disclose to C and would use to recommend to C that the complaint be amended to add E as a defendant.

Because many conflicts involve confidentiality issues, calling confidentiality “paramount” will not resolve the issue of whether confidentiality regarding the conflicts or confidentiality regarding the motion to withdraw is superior. Is the confidentiality value best served if L (a) withholds information and recommendation from C regarding E, and informs the court only that “professional considerations” support a withdrawal motion; or (b) discloses E’s information to C; or (c) makes the limited disclosure to the court that a conflict of interest is the basis for the withdrawal motion? I believe that option (c) is best, in part because it causes the least harm. The rules’ preamble states an overarching interpretative principle that the rules are “rules of reason.” Surely taking account of which actions produce the least harm to clients and the administration of justice is part of what a prudent and competent lawyer would do.

Moving from the hypothetical to the historical, American legal ethics analysis has not always found confidentiality to be “paramount” over disclosing reasons for withdrawal. The leading legal ethics commentary of the mid-20th century stated, “The mere fact that he strongly suspects fraud by his client, … justifies the lawyer in advising the court and withdrawing.” The same commentary stated, “When he [a lawyer] finds that the client has no case and the client has disappeared, he can move for leave to withdraw, advising all concerned.”⁴

Minnesota Lawyers. Minnesota lawyers may look to Minnesota law in two ways before applying Opinion 519. First, application of Opinion 519 in Minnesota is diminished by Minnesota state court rules that provide court permission for withdrawal from representation is not required in civil cases. The rules governing withdrawal in Minnesota state and federal courts are summarized in two excellent OLPR articles.⁵ In general, court permission is required for withdrawal in criminal cases in Minnesota federal and state court, and for civil cases only in federal court.

Second, there are numerous Minnesota state and federal cases in which lawyers seeking leave to withdraw made limited disclosures in their motions, without waiting for judicial inquiry or order. The courts ruled on the motions, usually granting them, without finding any impropriety in disclosures such as breakdown of attorney-client relationship, threats by a client to an attorney, substantial unpaid fees, and conflicts of interest. Some of these cases are cited in the chapter on Rule 1.16(c) of Minnesota Legal Ethics (15th ed.). “Rules of reason” are defined by reference to “the conduct of a reasonably prudent and competent lawyer” and Minnesota lawyers arguably could look to this case law for exemplars.⁶

Minnesota lawyers should also note well that several Minnesota lawyers have been disciplined for making disclosures that were beyond the reasonably necessary for the relevant purpose, e.g. attaching unredacted billing statements with service descriptions to a complaint to collect fees.⁷

“Damned If . . .” When a person appears to be damned if they do or don’t, Martin Luther advised “Pecca fortiter” – “Sin Boldly.” Aristotle’s advice in such situations was, “Do what a good person does.” Aristotle is echoed in Rule 1.0(i)’s definition of “reasonable” — what the competent and prudent lawyer would do. And Rule 1.6(b) allows disclosure based on what the lawyer “reasonably believes” is necessary to accomplish the relevant purpose.

In short, there are situations that do not lend themselves to resolution by a single principle or by absolute rules. Rule 1.14 (“Client With Diminished Capacity”) recognizes this and accordingly counsels much more than it requires or forbids. Situations in which a lawyer will violate a Rule by continuing representation and will need to disclose more than a reference to “professional considerations” to obtain permission to terminate the representation also seem to require appropriate deference both to professional judgment and to all relevant factors.

I believe that the infringement on confidentiality’s domain from locutions like “continued representation would involve prejudice to the administration of justice” or “continued representation would involve irresolvable conflicts of interest” would be far less serious than the harm to loyalty and to a lawyer’s duty as an officer of the court if Opinion 519 is followed in situations such as Hypotheticals 1 and 2, and that this gravity calculation should be made in deciding which duty is paramount in actual cases. In that respect, I disagree with ABA Formal Opinion 519‘s elevation of confidentiality to paramount status.

William J. Wernz is the author of the online treatise, “Minnesota Legal Ethics.” He has been a member of the Board on Judicial Standards, and he has served as Dorsey & Whitney’s ethics partner and as director of the Office of Lawyers Professional Responsibility.

Notes

1. ABA Model Rule 1.6(b) has 7 exceptions and its Minnesota counterpart has 11 exceptions.
2. ABA Formal Opinion 09-455 (2009) states, “Comment [12] to Rule 1.6 seems to limit “other law” to law other than the Rules.” This Comment is [10] under Minnesota Rule 1.6.
3. For example, Opinion 519 quotes ABA Formal Opinion 476, stating, “Rule 1.6(b)(5) authorizes the lawyer to disclose information regarding the representation of the client that is limited to the extent reasonably necessary to respond to the court’s inquiry and in support of that motion to withdraw.”
4. Henry S. Drinker, Legal Ethics 141, 142 (1953) (footnotes omitted).
5. Edward J. Cleary, Withdrawing as Counsel, Bench & B. of Minn., Nov. 1999. Kenneth L. Jorgensen, Ethical and Procedural Withdrawal Requirements, Minn. Law., Nov. 4, 2002.
6. Rule 1.0(i).
7. See William J. Wernz, Minnesota Legal Ethics, (15^th Ed. 2025) at 371-72.