Wisconsin Lawyer
Vol. 78, No. 9, September 2005

Withdrawing When a Client Doesn't Pay

by Dean R. Dietrich

Question

I have been representing a client in a protracted litigation matter, but the client is now refusing to pay my fees. May I withdraw from representing this client?

Answer

There are various circumstances under which a lawyer may withdraw from representing a client. In a litigation matter, the lawyer also must obtain permission from the court to withdraw from representation and it is not likely that the court will grant permission if the matter is close to trial or at a critical stage.

If a lawyer seeks to withdraw from representing a client, the lawyer must follow the Rules of Professional Conduct for "terminating representation." SCR 20:1.16(b) lists circumstances when a lawyer may withdraw from representing a client, including:

"(1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(2) the client has used the lawyer's services to perpetrate a crime or fraud;

(3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;

(4) 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;

(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(6) other good cause for withdrawal exists."

Under this provision, there are several instances when a lawyer may withdraw from representing a client, including instances in which "the representation will result in an unreasonable financial burden on the lawyer," or "the client fails to substantially fulfill an obligation to the lawyer regarding the lawyer's services" after reasonable warning from the lawyer. The continued representation of a client in protracted litigation when the client refuses to pay agreed on and incurred fees would form the basis for the lawyer's right to pursue withdrawal from representation.

As noted in SCR 20:1.16(c), however, the lawyer must obtain permission from the tribunal before terminating a representation and may be ordered by the tribunal to "continue representation notwithstanding good cause for terminating the representation." Thus, the judge may direct the lawyer to continue representing the client depending on the litigation's nature and status.

When a lawyer discontinues representation, the lawyer also has an ethical obligation to protect the client's interests. SCR 20:1.16(d) guides the lawyer on how to protect the client's interest. Under this rule, the lawyer must:

• give reasonable notice to the client;
• allow time for employment of other counsel;
• surrender papers and property to which the client is entitled;
• refund to the client any unearned portion of fees paid in advance; and
• provide all papers relating to the client so that the client can effectively retain new counsel.

The rule also suggests that the lawyer may retain papers relating to the client to the extent permitted by other law. There is no other law or provision of law within Wisconsin that specifically allows a lawyer to retain papers until fees are paid by the client. The client may be charged for photocopying documents that have been previously provided to the client; however, the lawyer must not withhold papers that could adversely affect the client's ability to obtain representation by another attorney. The Professional Ethics Committee has issued several opinions concerning the duty of a lawyer to provide files and papers to a client on request. See Ethics Opinions 82-7 and 00-03.

There are instances when a lawyer may withdraw from representing a client but in a litigation setting, such withdrawal must include the tribunal's approval. If a lawyer withdraws, the lawyer must comply with ethical duties to preserve the client's interests.

Wisconsin Lawyer