Opinion 2007-2
(February 2007)

The Inquirer represents a client in a family law matter. Inquirer has been representing the client since 2004, in a long, bitter custody battle. The litigation precedes Inquirer’s representation of the client. At the outset of the representation, the client signed a retention agreement which reserved Inquirer’s right to petition the court to withdraw as counsel for non-payment of fees or costs. As the matter was highly litigious, Inquirer was required to do significant work and make many court appearances on behalf of the client. Given the litigious nature of the custody battle, the legal bills continued to increase, and the client had difficulty keeping up with the payments. She was notified by Inquirer on multiple occasions that she needed to keep current on the bills or that Inquirer would have no choice but to petition the court to withdraw as counsel.

The Client paid some of the outstanding bills, but then informed Inquirer that she had no more funds to use towards legal fees. The Client owes outstanding legal fees in the amount of $16,954.00. As a result, the client realized that she would not be able to afford to carry on her case with Inquirer and fully consented to Inquirer's withdrawal from the case indicating a desire to represent herself in the matter going forward.

Thereafter, Inquirer filed a Petition to Withdraw as Counsel with the court. The Court had said it would grant the petition and allow Inquirer to withdraw as counsel. However, opposing counsel subsequently filed opposition to the Petition in which it was alleged that 1) the rules do not permit an attorney to withdraw based on a financial reason; and 2) the Inquirer has a professional obligation to continue representing the client, notwithstanding the language in the retainer agreement and the unpaid bill.

The Inquirer has sought an opinion from the committee as to whether there is any Rule of Professional Conduct which requires Inquirer to continue to represent the Client.

Rule 1.5 governs fees. In the Comment to Rule 1.5 [3], it states an attorney should not enter into an agreement whereby legal services are to be provided only up to a certain amount where it is anticipated that more extensive services will likely be required. However, "it is proper to define the extent of services in light of the client’s ability to pay." In this instance, it appears that the client's retainer agreement contained a provision which reserved Inquirer’s right to petition the court for withdrawal if the client was unable to pay legal fees or costs during the pendency of the representation. Here, Inquirer was retained in 2004 in what Inquirer knew was a bitter contested custody battle. Inquirer accrued legal bills on $16,954.00. It is now 2007, and client informed Inquirer that no funds were available to continue to pay legal fees. Under Rule 1.5, it appears that Inquirer was entirely appropriate in reserving the right to withdraw for non-payment of fees in the initial retainer agreement.

Rule 1.16, however, governs termination of representation. Pursuant to RPC 1.16 (b)(5), a lawyer may withdraw from representing a client if "the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled." In the initial retainer agreement, Inquirer reserved the right to petition to court to withdraw for non-payment of fees. Even absent the reservation, the client had an obligation to pay the Inquirer’s legal fees. According to the Inquirer, legal fees in the amount of $16,954.00 have accrued. Client failed to keep current on the legal fees and was advised by Inquirer on numerous occasions that a continued failure to keep current on the bills would necessitate Inquirer's petitioning the court to withdraw. Subsequently, the client advised Inquirer that no more funds were available to pay for legal fees and consented to Inquirer's withdrawal. The comment to the Rule specifically indicates the obligation of the client may be with respect to fees or court costs. Therefore, Inquirer’s petition to withdraw for non-payment of legal fees is appropriate under Rule 1.16 (b) (5).

Further, pursuant to Rule 1.16 (b) (6) a lawyer may withdraw from representing a client if "the representation will result in an unreasonable financial burden on the lawyer. . ." Inquirer has advised that client's custody matter is a long, bitter dispute, which has resulted in extensive work and court appearances. It is unknown what the Inquirer’s circumstances are, but to the extent that the matter requires significant of the Inquirer's time and resources, with no promise of payment of accruing legal fees, and will continue indefinitely, it may be that it would impose an unreasonable financial burden on the Inquirer, in which case, Inquirer also could permissively withdraw from representation.

Although Rule 1.16 (b) (1) states that a lawyer may withdraw where the withdrawal can be accomplished without material adverse effect on the client, the list of reasons for permissive withdrawal are in the disjunctive. The clear language of the Rule indicates that an attorney may withdraw for any of the listed reasons, including a financial reason.

In summary, it is not unethical or improper for the Inquirer to have petitioned the court to withdraw as counsel where the retention agreement contained language setting forth a right to withdraw for non-payment of fees, the client failed to keep current with the legal bills, the client was advised on multiple occasions that withdrawal would be sought if the bills were not paid, and the client subsequently advised Inquirer that there were no more funds available to pay for any legal fees and consented to Inquirer’s withdrawal from the case.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.