Published October 2012
by D. Culver “Skip” Smith III
euphemism n. The act or an example of substituting a mild, indirect, or vague term for one considered harsh, blunt, or offensive.
— American Heritage Dictionary of the English Language (4th ed.)
euphemysticism n. The act or an example of substituting a mild, indirect, or vague, off-the-top-of-one’s-head term for one considered likely to result in consequences adverse to one’s career.
— Smith, Ruminations on Life and Other Trivia
Rule Regulating The Florida Bar 4-1.16 lists ten circumstances requiring or permitting a lawyer to terminate the representation of a client prior to conclusion of the matter for which the lawyer was retained. Five of them involve varying degrees of client misconduct, ranging from criminal activity to nonpayment of the lawyer’s bill. (No, the latter is not criminal.) If the representation is in a litigated matter, the lawyer must obtain the court’s consent to the termination, thus necessitating a motion to withdraw. What grounds should the motion assert? If the basis is client misconduct (including nonpayment), the question produces a tension between the lawyer’s duty to the court under Rule 4-3.3(a)(1) not to make a false statement of fact and the lawyer’s duty to the client under Rule 4-1.6(a) not to reveal “information relating to the representation.”
The customary motion in this and many other jurisdictions simply intones “irreconcilable differences” or “irreconcilable conflict” with the client. Whether that satisfies the duty of candor to the court is debatable. (Indeed, in the case of nonpayment, it literally may be misleading: would not payment reconcile the “differences”?). Proponents of precise pleading and motion practice might suggest that the specific ethical basis should be alleged. Some examples:
1. “[Client] has failed to fulfill an obligation to undersigned counsel regarding undersigned counsel’s services and has been given a reasonable warning that undersigned counsel would withdraw unless the obligation was fulfilled.” (See Rule 4-1.16(b)(3).) Little doubt about what that means.
2. “[Client] insists upon taking action that undersigned counsel finds repugnant or imprudent or with which undersigned counsel has a fundamental disagreement.” (See Rule 4‑1.16(b)(2).) That practically screams that the client has threatened or demanded something dishonest or offensive to socially accepted (i.e., the lawyer’s) sensibilities.
3. “The representation has been rendered unreasonably difficult by the client.” (See Rule 4‑1.16(b)(2).) Message? The client is unreasonably demanding (or in a reversal of the usual pattern, won’t return the lawyer’s phone calls).
Even in the categorical terms of the rule, those allegations unquestionably reveal “information relating to the representation.” (Remember, the ethical rule is far broader in scope than the evidentiary lawyer-client privilege.) Hence the use of euphemistic/euphemystic terms like “irreconcilable differences,” which could mean just about anything. They are code for “Your Honor, trust me, I need to get out of this case.” Most judges know the code and grant permission to withdraw absent overriding countercircumstances. This is as it should be. In this more complicated time, however—when judges have real case-management issues and from time to time encounter lawyers who may harbor questionable motives—they may be inclined to press for the real basis for withdrawal. This ignites the ethical dilemma for the lawyer.
Balance is called for here. The terms “irreconcilable differences” and “irreconcilable conflict” should be the first line of effort. If that fails, the lawyer should remind the judge of the lawyer’s duty of confidentiality. (Suggestion: “Your Honor, this motion purposely uses general terms to permit me to comply with my ethical obligation to [Client] under Rule 4-1.6 of the Rules Regulating The Florida Bar not to reveal, quote, any information relating to the representation, end quote. Your Honor has the discretion to grant the motion without requiring further detail, and I respectfully request that you do so.”) If the judge nonetheless presses for detail, the lawyer should offer a general description, such as (if it is true), “[Client] and I have a fundamental disagreement over strategy.” If the judge presses further, the lawyer should consider requesting the opportunity to explain ex parte and in camera. But if the problem is something truly embarrassing or prejudicial to the client—especially if the judge will be the fact finder—the lawyer should stand on the duty of confidentiality. One hopes that the judge will see the value in not pressing the point further and in ruling on the motion without further detail. (Note that the focus of this article is motions to withdraw and not a lawyer’s independent duty under subsections (a)(2) and (b) of Rule 4-3.3 to disclose a client’s criminal or fraudulent conduct to the court under certain circumstances.)