Opinion #212 – 11/22/1971 (44-71)
employment, legal fees, matrimonial matters, superseding lawyer
Topic: Withdrawal from employment for non-payment of fee
Digest: Failure to pay fee does not warrant lawyer’s refusal to file final decree where court has not granted permission to withdraw
Code: DR 2-110(A)(2),( 3); DR 2-110 (C) (1) (f); EC 2-32
May an attorney who represents the plaintiff in a divorce action, who has received a retainer, and who is to receive the balance of his fee in a second installment, refuse to file the final decree of divorce until the client pays the last installment on the retainer?
If a lawyer desires to withdraw from a matter that is pending before the court, the proper procedure is to request the court’s permission. N.Y. State 187 (1971)1 N.Y. State 178 (1971). Mere failure to pay an agreed fee, which is not deliberate, is not a ground for requesting such permission. Where, however, a client deliberately disregards an agreement or obligation to his lawyer as to expenses or fees the lawyer may request the court for permission to withdraw. DR 2-110(C)(1)(f).Accordingly, it would not be proper for a lawyer to refuse to file a final decree of divorce without obtaining the court’s permission to withdraw from his employment. If he is permitted to withdraw, he shall nevertheless comply with the provision of DR 2-110(A)(2) and (3) which provides:”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.””A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.”In addition, the lawyer should cooperate with counsel subsequently employed and otherwise endeavor to minimize the possibility of harm to his client. EC 2-32; See, N.Y. City 364 (1936).