February 17, 1983
The practice of having a client enter into an attorney fee agreement stipulating to the lawyer's withdrawal in the event of a later dispute or the client's financial inability to pay legal fees or expenses under any circumstances is improper.
References: MCPR DR 2-110(C)(1)(f).
A lawyer asks about the propriety of including in a fee agreement a stipulation that would permit the lawyer to withdraw from representation of a client should the client violate the fee agreement.
MCPR DR 2-110(C) sets forth specific instances for permissive withdrawal. One of the circumstances in which a lawyer is permitted to withdraw is when the client "deliberately disregards an agreement with the lawyer as to fees or expenses." See MCPR DR 2-110(C)(1)(f). The committee believes that the use of the word "deliberate" is significant and does not permit a lawyer to withdraw in every instance of the client's failure to live up to the lawyer's expectations with respect to payment of fees and costs. While a client's deliberate disregard of an obligation to pay legal fees justifies the lawyer's withdrawal, a lawyer should not withhold services necessary to protect the client's interests in an attempt to coerce payment. Lawyers are professional people and as such are expected to maintain a higher standard of conduct than is sometimes displayed in the ordinary commercial world. It is also true that a lawyer is not required to accept employment from every person seeking services, however, acceptance of the employment implies that the lawyer will process the matter to a conclusion. A stated objective of the legal profession is to provide services to all those persons in need and withdrawal under circumstances where the client lacks financial ability to meet the contractual requirements of a fee agreement is not required.
The Code does not explicitly prohibit a client from consenting to a lawyer's withdrawal from representation in advance of a dispute or the client's breach of a lawyer agreement, however, the practice of having the client presign a stipulation for the lawyer's withdrawal in the event of later dispute or inability to pay legal fees for reasons beyond the control of the client is at best unprofessional and borders on overreaching. The practice is similar, in impact, to having the client sign a promissory note containing a confession of judgment clause (prohibited in many jurisdictions) and should not be ethically condoned.
Even under circumstances where DR 2-110(C)(1)(f) would warrant a lawyer's withdrawal, DR 2-110(A) requires that reasonable notice be given to the client, allowing ample time to employ a substitute counsel; that the attorney delivery to the client all papers and property to which the client is entitled; that the unused portion of fees paid in advance and unearned be refunded to the client; and, that if the particular tribunal requires leave of court (which is the general rule), it must first be obtained.