PHILADELPHIA BAR ASSOCIATION

PROFESSIONAL GUIDANCE COMMITTEE

Opinion 98-12
(June 1998)

You have requested the opinion of the Professional Guidance Committee regarding your obligations following your clients ex parte contacts with the court and your intent to withdraw as counsel.

Your client is the plaintiff in a personal injury case. You and opposing counsel learned during a conference call with the judge, that your client had written to the judge to confirm the dates of both the pre-trial conference as well as the start of the trial. Following that conference call, the judge's secretary faxed you the letter and its enclosures. The client's letter attempted to persuade the judge of the value of her case, and enclosed some pleadings and some confidential attorney-client correspondence between you and the client. When you requested a hearing before the judge to discuss your client's possible and uninformed waiver of the attorney-client privilege, you learned that your client had also delivered her medical records to the judge's chambers. It is your understanding that the judge did not read the records and ordered everything returned to your client. You have as yet not been able to reach your client to discuss what has transpired.

Your first inquiry is whether you have a duty to disclose the content of your client's letter to opposing counsel, and whether you must also disclose the enclosures which included privileged attorney-client communications. You did not engage in ex parte communication with the court; your client did without your knowledge. Thus there were no violations of Pennsylvania Rules of Professional Conduct (hereinafter referred to as "Rule(s)") 3.5b or 8.4a, that would require disclosure to the other side. You fulfilled your obligation to your client by seeking a hearing to address your client's possible uninformed waiver of the attorney-client privilege. It was then up to the judge to decide how to handle the matter. Apparently, the judge decided to abort the unintended waiver of the privilege and to reject your client's attempted ex parte communication by returning all of the materials. Your obligation at this point is to contact your client immediately, explain the potential adverse consequences of her conduct, and advise her not to make any more ex parte contacts with the judge. You are not required to disclose the client's letter and its enclosures to opposing counsel, and indeed your obligation to maintain your client's confidences under Rule 1.6 would prevent you from doing so.

You have asked whether you should file a motion for recusal of the judge. This is a strategic decision you must make after considering all of the circumstances, including your belief that the judge was not influenced by your client's letter. You should also consider whether a motion for recusal would result in disclosure of confidential information to opposing counsel; if so, you must obtain your client's consent under Rule 1.6.

Your intention to file a motion to withdraw as counsel is governed by Rule 1.16. Although you may withdraw as counsel if your client insists upon pursuing objectives that you consider imprudent (see Rule 12.16(b)(3)), or if there has been a complete breakdown of communication and trust (see Rule 1.16(b)(5)), you must also protect your client's interests during the withdrawal process (see Rule 1.16(d)). Your petition to withdraw should not reveal information that may harm your client's case. Thus, you may not state your own beliefs regarding the seriousness of your client's injuries. If the court does not permit you to withdraw, you must obey the court's order. Since you believe that your client was injured, the claim is not frivolous and you are not violating Rule 3.1 regarding pursuit of frivolous claims. As to litigating the issues of the severity of your client's injuries, your obligation under Rules 1.2(a) and 1.3, is to carry out your client's decisions, within the limitations set forth in Rule 1.2(d) and (e). In this regard, Rule 3.3 prohibits you from making false statements to the court and presenting false information at trial.

Your final concern is correcting the misrepresentations contained in your client's letter to the court, where she misquoted you and misrepresented the circumstances of how she became your client. Since you may not communicate ex parte with the judge, you must consider whether airing the misrepresentations in the letter may harm your client and provide an opportunity for opposing counsel to obtain confidential attorney-client information . Rule 1.6 requires that you protect this confidential information, and Rule 1.7 does not allow you to place your interests, in clearing your reputation before the Court, ahead of your client's interests.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.