July 15, 1997
A lawyer may charge for the lawyer's time spent in preparing a motion for withdrawal and appearing on the motion if the client has requested that the lawyer withdraw; if it is the lawyer's desire to withdraw, then the client cannot be charged.
A lawyer may charge for time spent with successor counsel in reviewing the file to bring the lawyer's successor up to date.
Once a grievance has been filed, the lawyer may not charge for time in preparing a response to the Request for Investigation.
References: MRPC 1.2(a), 1.4(b), 1.5(a), 1.16(a), (c) and (d); RI-84, RI-98, RI-203, RI-257; MCR 9.103(b), MCR 9.105.
A lawyer has been retained to represent a client in a litigation matter. They have agreed that the lawyer be compensated on an hourly fee basis. The client now wishes to discharge the lawyer and seek new counsel. Several issues have arisen regarding fees involved in the termination of the relationship; the lawyer asks:
May the client be charged for the lawyer's time spent in preparing a motion for withdrawal and appearing on the motion?
May the client be charged for the lawyer's time spent with successor counsel in reviewing the file to bring successor counsel up to date?
If the client files a grievance against the lawyer before the motion to withdraw is granted, may the client be charged for the lawyer's time in preparing a response to the Request for Investigation?
MRPC 1.16(a) states in part:
"(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from representation of a client if:
"(1) the representation will result in violation of the Rules of Professional Conduct or other law;
"(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
"(3) the lawyer is discharged.
". . .
"(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation."
"(d) Upon termination of representation, a lawyer should take reasonable steps to protect a client's interests . . . ."
The area of fees is one replete with opportunities for disputes with clients and one that may contribute to the public perception that lawyers are not particularly ethical. The Rules of Professional Conduct, particularly, MRPC 1.5, provide principles, which if followed, would ameliorate the perception. MRPC 1.5(a) provides that: "A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee."
We note that under MRPC 1.2(a), a lawyer has the obligation to seek the objectives of a client through reasonably available means permitted by law and the ethics rules. Further, MRPC 1.16(a) requires a lawyer to withdraw when discharged by the client. Therefore, it may be argued that a lawyer's compliance with a client's request to withdraw furthers the client's express desires and is part of the lawyer's obligation to the client.
Generally, when a matter is undertaken on an hourly fee basis, the lawyer may charge only for time actually spent on behalf of the client. Once having been notified of the client's intention to terminate the relationship, the lawyer must take steps necessary pursuant to the court rules to withdraw from the representation. RI-98. The commentary to MRPC 1.16 notes that: "Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client."
When a client seeks to discharge a lawyer, the lawyer has an obligation under MRPC 1.4(b) to explain to the client the effect of the withdrawal, including the likelihood of the judge granting the withdrawal under MRPC 1.16(c), that the lawyer continues as counsel until the judge grants the motion to withdraw, and that the motion to withdraw may not terminate the lawyer's ethical obligations to refrain from assisting illegal or fraudulent conduct of the client [MRPC 1.2(c), 1.2(d), 3.3(a)]. Presuming that the lawyer has fulfilled all obligations at the time of the contract and at the time withdrawal is requested, and as in this case, the contract is hourly [not contingent or fixed fee], the lawyer may charge to fulfill the client's wishes.
On the other hand, when it is the lawyer who has decided to withdraw, whether with cause or otherwise, the lawyer is not serving the interest of the client and therefore may not charge the client for expenses incurred in seeking the withdrawal.
In RI-203, the Committee discussed the obligations of successor counsel to pay the advanced costs of predecessor counsel. RI-203 based its reasoning on MRPC 1.16(d), the withdrawing lawyer's obligation to surrender "papers and property to which the client was entitled." In the current inquiry, there is no question about turning over the client file. Instead, the question is whether withdrawing counsel may be required, at no additional charge, to brief successor counsel on the matter. The Committee find no such obligation in MRPC 1.16(d) or any other rule. Briefing a competitor on the file, in essence on the withdrawing lawyer's lost business opportunity, cannot reasonably be presumed to have been intended in the original client-lawyer arrangement, absent clear language to the contrary. Therefore, absent a fee arrangement to the contrary, a lawyer is not required to brief successor counsel without charge.
A different result might be required if the lawyer seeks to withdraw because of conflict of interest, lack of competence, or other reason not initiated by the client. Indeed, if the withdrawal is occasioned by a conflict, briefing successor counsel may taint the successor. Since voluntary withdrawal and wrongful withdrawal are not raised in this inquiry, those situations are not addressed here.
If a grievance has been filed, continued representation depends on whether the grievance adversely affect the lawyer's ability to represent the client in the main matter. RI-84. It clearly was not contemplated in the original fee arrangement that the client and lawyer would have disputes about the lawyer's ethical obligations in the representation. Again, a lawyer may not unilaterally charge for services for which the client has not agreed to pay. MCR 9.105 states that discipline for misconduct is for the protection of the public, the courts, and the legal profession. Lawyers are encouraged to assist a member of the public in filing grievances. MCR 9.103(B). Lawyers may not bargain with a client's right to file a grievance, RI-88, RI-257. Fees from preparation of a response to a grievance filed by a client after discharge of the lawyer would not be appropriate; time expended on such a response inures to the benefit of the lawyer, not the client.