There have been interesting developments on the topics addressed in the two most recent articles in this column. In January we discussed “Withdrawing From 'Problem' Clients—Consider a New Year's Resolution” (N.Y.L.J., Jan. 8, 2018). We focused on the circumstances when withdrawal is permitted under New York's Rules of Professional Conduct (RPC) 1.16, and on two recent cases that each demonstrated the importance of clarity in lawyers' communications with their clients if they are seeking to end representation. Then on January 29, the New York State Bar Association Committee on Professional Ethics issued Formal Opinion 1144 on the subject of Communications with Client; Withdrawal from Representation of Difficult Client (Opinion 1144). Opinion 1144 is significant because it focuses on communications between lawyers and clients before withdrawal becomes appropriate.

A lawyer had been assigned by the court to represent a defendant in a criminal case where the client had previously been represented by other lawyers. The client had previously unsuccessfully sought to have the current lawyer relieved from his assignment, and the lawyer sought the opinion of the Committee as to whether it is proper to impose restrictions on the time and manner of communications with the client, including specific limitations with respect to scheduled appointments and written communications, in light of the fact that the client is, as reported by the lawyer “physically intimidating, verbally abusive, and often nonresponsive,” in addition to having mental health issues for which the client is being treated.

The Opinion first addresses the meaning and scope of RPC 1.4, which sets out a lawyer's obligations with respect to communicating with clients. The Rule provides that:

“(a) A lawyer shall:

(1) promptly inform the client of:

(i) any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(j), is required by the Rules;

(ii) any information required by court rule or other law to be communicated to a client; and

(iii) material developments in the matter including settlement or plea offers.

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with a client's reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by these Rules or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

The Committee points to three critical principles derived from this Rule.

“First, a lawyer must keep the client apprised of material circumstances and developments in the matter. Second, a lawyer must comply with a client's reasonable requests for information. Third, a lawyer must reasonably consult with a client both about the means of accomplishing the client's objectives and about other decisions regarding the representation, some of which are within the client's province to decide.”

However, the Committee notes that although these principles are robust and often require prompt communication from the lawyer to the client, the Rule does not specify the manner of communication, unless other Rules mandate a writing (e.g., regarding conflicts, and legal fees ). The Committee explicitly notes “that a lawyer need comply only with reasonable requests for information, thereby allowing lawyers the flexibility to curtail conversations or meetings that stray beyond the relevant substance of the representation. This provision expresses the Rule's recognition that some clients may thrust upon their lawyers burdensome, immaterial requests for information and that lawyers need not meet such unreasonable demands.” Equally, the Committee finds that the Rule and the Comments are “consistent with the notion that a lawyer—often balancing competing obligations—needs to have reasonable latitude to schedule the timing of client communications.”

With respect to whether and when it may be appropriate for a lawyer to withdraw from representing a difficult client, the Opinion reviews RPC 1.16 (discussed in the previous article in this column), but focuses specifically on what needs to be established when a lawyer seeks the permission of a tribunal to withdraw where the basis for doing so rests upon “whether the client's conduct will prevent the inquirer from 'carry[ing] out the representation effectively' under Rule 1.16(c)(7).” The Opinion notes that “if the client's verbal abuse and non-responsiveness result in a collapse of meaningful communication, then effective representation is almost certainly not possible.” Citing Roy D. Simon & Nicole Hyland, Simon's New York Rules of Professional Conduct Annotated, 959 (2017), and Cahill v. Donahoe, 2014 WL 3339787 (W.D.N.Y. 2014), the Opinion concludes that “[i]f an irreparable disintegration in communication has occurred, the inquirer may ask the court for permission to withdraw.”

The Opinion is also significant because it discusses lawyers' obligations where, as in this instance, the client has mental health issues. Discussing RPC 1.14, which governs responsibility toward clients with diminished capacity, the Opinion emphasizes that the lawyer's primary obligation is to maintain a normal lawyer-client relationship “as far as reasonably possible.” Unfortunately, both the Rule itself and the comments express the unhelpful and vague exhortation that situations where a client is “incapable of communicating or making a considered judgment on the client's own behalf cast(s) additional responsibilities on the lawyer.” Rule 1.14, Cmt. [1]. The Opinion appears to go beyond what is permissible under RPC 1.6 with respect to consultation with third parties who may have the ability to take action to protect the client, but it does make clear that “seeking the appointment of a guardian is the last resort, when no other protective action will protect the client's interests.”

In sum, the Opinion correctly concludes that “[a] lawyer may place reasonable limitations on the timing and manner of client communications. When there is a breakdown of communications between a lawyer and client such that representation cannot be carried out effectively, the lawyer may seek to withdraw from representing the client.”

Border Searches

In the Sept. 1, 2017 article in this column (“Threading the Needle: Protecting Client Information From U.S. Border Searches”), we examined the potential threat to lawyers whenever they travel internationally while carrying electronic devices containing client confidential information, and the New York City Bar Association's Committee on Professional Ethics Formal Opinion 2017-5 “An Attorney's Ethical Duties Regarding U.S. Border Searches of Electronic Devices Containing Clients' Confidential Information” (Opinion 2017-5). The Opinion sought to address two questions: When returning to the United States from traveling abroad, what is the scope of lawyers' duties to protect client confidential information when information is stored in their electronic devices, and what steps do lawyers need to take to comply with these duties?

More recently, in advance of the recent ABA Mid-Year Meeting in Vancouver, British Columbia, Canada, the ABA Center for Professional Responsibility prepared and circulated a detailed paper seeking to give counsel to lawyers on how they should address these issues. After analyzing the latest Directive issued by the U.S. Customs and Border Protection (CBP) agency (January 2018), and summarizing the applicable Rules of Professional Conduct, the paper offers a list of protective measures that lawyers should consider when returning to the United States after traveling abroad. Like the New York City Bar Opinion, the paper is somewhat vague, and is in no way prescriptive. However, in addition to stressing the need for lawyers to consider how the Rules of Professional Conduct in their jurisdictions apply to the protection of client confidential information generally, among the paper's recommendations for lawyers returning to the United States from foreign travel are:

• “Determine whether any electronic device that is necessary for your international travel contains information relating to the representation of a client, information protected by the attorney-client privilege or as attorney work product, or judicial or adjudicative information and material that is confidential (collectively, 'confidential information'). Eliminate or minimize the number of these electronic devices that are in your possession when travelling.”

• “If an electronic device is necessary during the trip, minimize the amount of confidential information contained on the device. Remember that with electronically stored information, 'delete' almost never fully removes all data.”

• “Consider obtaining a new but inexpensive electronic device. Place only necessary information on the device, and minimize or avoid placing confidential information on the device. Consider whether confidential information on the device should be encrypted. But keep in mind that CPB may demand that you unencrypt or unlock information, and, if you are unable to do so, CPB may detain the device.”

• “Before approaching a border inspection area, consider placing electronic devices in “airplane” mode or having all Wi-Fi, Bluetooth and cellular connections terminated and disabled. Consider whether electronic devices should be powered down or locked.”

• “If subject to border inspection of electronic devices, determine whether the officer is making a 'request' or a 'demand' for inspection. Consider whether the Rules of Professional Conduct in your jurisdiction of licensure would permit you to consent to a 'request' for inspection, or to accede to a 'demand.'”

• “If subject to border inspection of electronic devices, be prepared to identify yourself as a lawyer, judge or other legal professional and advise the officer that the electronic devices contain confidential information. Consider having available your bar admission card, business card, judicial identification(s) or other evidence that you are a legal professional.”

Anthony E. Davis is a partner of Hinshaw & Culbertson and is a past president of the Association of Professional Responsibility Lawyers.