We’ve written before about what you can and cannot say when withdrawing from representation. Now a Texas bar ethics opinion adds a twist: what can you tell an insurance company that retains you to represent its insured, when the client won’t cooperate?
Lonely in the Lone Star state
A Texas lawyer had a quandary. An insurer had assigned Lawyer to defend its insured in a state court personal injury action arising out of a car accident. For a while, the client cooperated. Then — radio silence. Lawyer tried contacting the client by various means, including having an investigator track the client down to ask him to contact Lawyer.
The client’s non-cooperation made it difficult or impossible to defend the suit, and exposed Lawyer to sanctions for not answering discovery requests. Lawyer also realized that the client’s failure to communicate might violate the cooperation provision of the insurance policy, and result in the insurer withdrawing coverage.
Lawyer’s investigator finally delivered a letter to the client, warning that Lawyer would move to withdraw if the client didn’t contact Lawyer. Receiving no response, Lawyer prepared to withdraw, and asked for guidance on what he could disclose to the insurance company about the reasons for withdrawing.
Silence is golden
You can’t say much, answered the state bar ethics committee. “At a minimum,” the committee said, the client’s “failure to communicate with Lawyer is unprivileged client information.” Under the state’s version of Model Rule 1.6, that meant that it was confidential information that Lawyer could not disclose to third parties or use to the disadvantage of the client, including in the context of withdrawing from the representation.
No exception to the general confidentiality rule applied here, noted the committee. For instance, like the Model Rule, the Texas rule allows lawyers to disclose confidential client information in order to carry out the representation. It’s sensible to regard that kind of disclosure as always being impliedly authorized, because otherwise, we could not negotiate with opposing counsel, for instance. But the disclosure here would not be for the purpose of representing the client, the committee said — rather, it would be for the purpose of ending the representation.
Therefore, in withdrawing, the Lawyer was advised not to reveal the client’s failure to communicate in order to explain either to the insurance company or the court the reason for Lawyer’s withdrawal.
The committee cited the ABA Ethics Committee’s 2016 Opinion 476, which considered what you can say to the court when withdrawing for non-payment, and which, like the Texas opinion, advises that the information is within the scope of your confidentiality duty to the client.
Take home lessons
- Bear in mind that even the most difficult client is still your client; the Texas opinion points out that there’s no free ethics pass even when the client stops communicating with you.
- And in the insurance defense context, the insured is a client for ethics purposes, despite the fact that the insurance company has assigned the case to you and is paying your fees.