The Tennessee appellate courts are kind of on a roll (if 2 in one month can be characterized as a “roll”) in issuing opinions making educational points about the Tennessee ethics rules. The latest example is a decision from the Tennessee Supreme Court highlighting a reality that lots of lawyers in Tennessee (and elsewhere) continue to not fully understand.
In Johnson v. BPR, the Tennessee Supreme Court affirmed a three-month suspension of a lawyer who disclosed client confidential information in connection with moving to withdraw from a litigation matter.
Now the facts of the situation surrounding withdrawal are of the typically egregious nature that results in the kind of facts that lead to a published opinion like this. (Although the “harshness” of the discipline likely is significantly influenced by the lawyer’s past disciplinary history.)
Johnson and his client entered into an engagement agreement in a family law matter that provided for the payment of a $3,500 flat fee. Within roughly two months of the attorney-client relationship commencing, Johnson filed a motion to withdraw that simultaneously asked the trial court to award him $3,500 from his client (attaching a copy of his engagement letter to the motion), indicating that his client had refused to follow his advice on the case, and stating that his client had been berating him by email. Johnson also attached as an exhibit to the motion, unredacted emails between himself and his client.
The emails contained discussion of the scope of the relationship,
Mr. Johnson’s professional opinions and advice related to the representation, Ms. Howard’s position on matters at issue in the case, threats by Mr. Johnson to withhold services as punishment for what he perceived as poor behavior by his client, and personal insults between the two. There is no dispute that these are confidential communications disclosed in a public filing. On March 30, 2021, the trial court, seemingly oblivious to the improper disclosures, granted the motion to withdraw, denied the motion for attorneys’ fees, and stated that Mr. Johnson was permitted to file an attorney’s lien for his fees.
In a further, fun wrinkle, the Court’s opinion pointed out that Johnson did not actually file a notice of appearance for the client in the case until the day after he filed his motion to withdraw.
But the most salient (and helpful) piece of this opinion for attorneys arises from a concurring opinion in the original ruling by the Hearing Panel making a point that the Tennessee Supreme Court has now helpfully taking the opportunity to amplify.
You can read the opinion at the link above to see both the words used by the one Hearing Panel member, and those used by the Tennessee Supreme Court, but I will make the point in my own words here.
“If it would be a violation of RPC 1.6 to disclose information related to representation of your client in a motion to withdraw, then it still is a violation of RPC 1.6 to make that disclosure in camera to the Court.” – Me
The circumstances that arise when a lawyer needs to seek permission from the Court to withdraw from representing a client in a lawsuit traditionally have two stumbling blocks for lawyers that are related to some degree: (1) recognizing that no matter how frustrated they might be with their client, RPC 1.6 imposes significant handcuffs on their ability to tell the court in the motion why they are moving to withdraw; and (2) recognizing that the solution to that frustration isn’t simply moving immediately to trying to show communications to the court in camera.
The correct procedure, as frustrating as it can be for a lawyer who is already working on “cutting their losses” with a client they either no longer want to, or simply can’t, continue to represent is to say very little in the motion itself and hope that the court does not demand more information and just grants the motion.
If the court does though indicate in connection with the motion that it is not inclined to grant the motion without more details about why, then the lawyer can make clear to the court that the lawyer cannot really do that unless the court orders the lawyer to disclose further information. If the court does that, then in most instances the lawyer can rely upon their ability under RPC 1.6 to disclose client confidential information when doing so is necessary to comply with a court order. (In fact, here in Tennessee, we have deviated from the ABA Model Rules by requiring a lawyer (under RPC 1.6(c)) to disclose client confidential information if necessary to comply with a court order).
In response to such an order, the rules do stress that the lawyer should try to limit such a disclosure to circumstances where it would be made in camera, but that is a different situation than what was properly recognized as still being violative in the Johnson case.