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Bar Counsel Notes: Termination/withdrawal - failure to pay fee
May an attorney withdraw due to a client's failure to pay fees? Does Bar Rule 3.5(a)(3) prevent an attorney from withdrawing - or requesting a tribunal's approval for withdrawal, if needed - from representation of a client based only upon a client's failure to pay the attorney's agreed upon fee? The language of Rule 3.5(a)(3) states: "Withdrawal shall not be conditioned upon payment by the client for services to date; and a lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned."
An attorney is allowed to withdraw if a client fails to pay an agreed upon or earned legal fee. An attorney is allowed to withdraw if a client fails to pay an agreed upon or earned legal fee. Bar Rule 3.5(a)(3) should be read in conjunction with Rule 3.5(c)(6), which does allow an attorney's withdrawal or a request to withdraw when: "The client deliberately disregards an agreement with, or an obligation to, the lawyer as to expenses or fees." Bar Rule 3.5(a)(3) is not inconsistent with that allowance. Rather, that section of the withdrawal rule merely prohibits a lawyer from insisting that a client must pay an outstanding legal bill before the lawyer will take the required steps to withdraw.Bar Rule 3.5(a)(3) should be read in conjunction with An attorney is allowed to withdraw if a client fails to pay an agreed upon or earned legal fee. Bar Rule 3.5(a)(3) should be read in conjunction with Rule 3.5(c)(6), which does allow an attorney's withdrawal or a request to withdraw when: "The client deliberately disregards an agreement with, or an obligation to, the lawyer as to expenses or fees." Bar Rule 3.5(a)(3) is not inconsistent with that allowance. Rather, that section of the withdrawal rule merely prohibits a lawyer from insisting that a client must pay an outstanding legal bill before the lawyer will take the required steps to withdraw. Rule 3.5(c)(6), which does allow an attorney's withdrawal or a request to withdraw when: "The client deliberately disregards an agreement with, or an obligation to, the lawyer as to expenses or fees." An attorney is allowed to withdraw if a client fails to pay an agreed upon or earned legal fee. Bar Rule 3.5(a)(3) should be read in conjunction with Rule 3.5(c)(6), which does allow an attorney's withdrawal or a request to withdraw when: "The client deliberately disregards an agreement with, or an obligation to, the lawyer as to expenses or fees." Bar Rule 3.5(a)(3) is not inconsistent with that allowance. Rather, that section of the withdrawal rule merely prohibits a lawyer from insisting that a client must pay an outstanding legal bill before the lawyer will take the required steps to withdraw.Bar Rule 3.5(a)(3) is not inconsistent with that allowance. Rather, that section of the withdrawal rule merely prohibits a lawyer from insisting that a client must pay an outstanding legal bill before the lawyer will take the required steps to withdraw.
*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.
