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ETHICS OPINION 390-1950
NUMBER 390 1950
Question. I would appreciate an opinion as to the proper course of conduct I should follow with respect to the following situation:
My client was sued for a brokerage commission and retained me to defend this action. It was agreed that certain fees were to be paid relative to the preparation of an answer, motion to dismiss the complaint, motion to dismiss the amended complaint, and various appeals in connection with these motions. These fees were paid. It was also agreed that there would be a separate fee for the trial of the action. The client has not paid this trial fee.
Several letters addressed to the client in connection with this trial fee have not been answered. The case will come up for trial in the fall and I would like to know what I should do now, so that the client’s case will not be prejudiced, and at the same time to define my obligations in respect to said client under the aforesaid circumstances.
Answer. There would appear to be no doubt that the attorney would be required to represent his client in the trial of the case and take all proper steps to protect his interests although the client has not paid him his trial fee, unless the facts warrant the attorney’s withdrawal from the case.
Canon 44 of the Canons of Professional Ethics of the American Bar Association provides that “the right of an attorney or counsel to withdraw from employment, once assumed, arises only from good cause” and that “the lawyer should not throw up the unfinished task to the detriment of his client except for reasons of honor or self respect.” Although Canon 44 further provides that if a client “deliberately disregards an agreement or obligation as to fees or expenses, the lawyer may be warranted in withdrawing on due notice to the client, allowing him time to employ another lawyer,” by Canon 12 we are admonished never to forget “that the profession is a branch of the administration of justice and not a mere ‘money getting trade.’ ” Canon 14 states in this regard that “controversies with clients concerning compensation are to be avoided by the lawyer so far as shall be compatible with his self-respect and with his right to receive reasonable recompense for his services” and further that “law suits with clients should be resorted to only to prevent injustice, imposition or fraud.”
In the light of the Canons referred to, we are of the opinion that the mere failure to pay a fee agreed upon would not of itself justify an attorney’s withdrawal from litigation which he has undertaken. The right of withdrawal would depend upon the surrounding circumstances. Where the client’s failure to pay is willful, deliberate and inexcusable, good cause for withdrawal would doubtless exist under Canon 44. On the facts stated, however, we are of the opinion that the attorney would not be justified in withdrawing from the case at this time. The attorney has apparently received full cooperation from his client in all matters save in his failure to respond to “several letters” of the attorney with respect to the payment of the trial fee. The reason for nonpayment does not appear. Nonpayment due to inability to pay or because of temporarily straitened circumstances would hardly justify withdrawal, especially where, as here, the client has honored his obligations to the attorney by making the various payments required during the earlier stages of the litigation.
The attorney is, of course, entitled to know the basis for the nonpayment of his trial fee so that he may be advised as to the proper course to pursue. On the other hand, the client is entitled to know that a deliberate refusal on his part to pay the trial fee agreed upon might result in the attorney’s withdrawal from the case. A suggested procedure would be for the attorney to send to his client a peremptory notice, referring to his prior unanswered letters and advising the client that unless the attorney receives payment on or before a specified date or satisfactory explanation given, he will regard the nonpayment as a deliberate refusal of the client to meet his obligations under the retainer and will withdraw from the case. If payment is not made, or reasons for nonpayment given, which in the light of the foregoing Canons would require the attorney to continue in the litigation, or if the client ignores the notice, the attorney in the opinion of the Committee would be warranted in withdrawing from the case. Should subsequent developments justify withdrawal, the attorney should notify the client in writing that after a specified date, sufficiently distant to enable the client to secure and substitute a new attorney, he will no longer act for the client in the litigation.
This answer does not concern itself with the legal procedure essential to such withdrawal or with the legal rights and obligations of the client and the attorney under the retainer. (Cf. 7 C.J.S. p. 944; Opinion 55, Committee on Professional Ethics of the New York County Lawyers’ Association.)