Ethics Opinion 187

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinions

Opinion #187 – 04/28/1971 (15-71)

Topic: Withdrawal from Employment
Digest: Mere nonpayment of additional retainer does not justify withdrawal from matter pending before the Court, without the Court’s permission
Code: DR 2-110(A)(2) and (C)(1) (f) EC 2-32

QUESTION

Is it proper for a lawyer, without the Court’s permission or his client’s consent, to withdraw from representation of his client and to refuse to attend at the trial unless he is paid further retainers.

OPINION

Such conduct would be improper. A lawyer who assumes representation of a client in a civil or criminal case may withdraw only on the basis of compelling circumstances. EC 2-32. When a matter is pending before a tribunal the proper procedure is for the lawyer to request the Court’s permission to withdraw. N.Y. State 178 (1971). Such permission may properly be requested when a client “deliberately disregards an agreement or obligation to the lawyer as to expenses or fees.” DR 2-110 (C)(1) (f). Where there is no agreement as to the amount of compensation or the time for the payment, it cannot be said that the client “deliberately disregards an agreement or obligation” In any case where withdrawal is permitted the lawyer should comply with the requirements of DR 2-110 (A)(2), which provides that:”(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.”

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