Opinion No. 1995-9

(Inquiry No. )

Retirement of lawyer handling active litigations.
A retiring lawyer seeking to withdraw from a employment as litigation counsel in ongoing matters must take steps; to the extent reasonably practicable to avoid foreseeable prejudices to his clients. In matters in which the lawyer is attorney of record before a tribunal the rules of which require permission for withdrawal, the lawyer must not withdraw without obtaining permission. Questions pertaining to the fees that the retiring lawyer may be entitled to retain or collect in connection with litigated matters pending at the time of his withdrawal generally involve issues of law rather than ethics, except that the retiring lawyer is required to refund promptly any part of a fee paid in advance that has not been earned.
Code Provisions:
DR 2-110(A)(1), (2) and (3)
DR 2-110(B)
DR 2-110(C)
EC 2-32
Facts Presented:
Inquiring counsel, who is representing clients in pending litigation matters in varying states of pretrial preparation, is contemplating retirement from the practice of law prior to the conclusion of the litigations. Inquiring counsel has been retained on a contingency basis in some matters, on a flat-fee basis in others, and on a time basis on the remainder, and has received certain payment of fees in the non-contingency matters.
Does a lawyer contemplating retirement have an absolute right to withdraw as counsel in Pending litigation matters? What would be the affect of the withdrawal upon the lawyer’s right to obtain or retain fees in cases: (a) Undertaken on a contingency basis; (b) for which most of an agreed fee has been paid but the trial and, in some cases, additional discovery remains to be completed; or (c) for which payment has been received f or work completed up to the time of retirement?
Inquiring counsel may not withdraw from employment in pending litigation matters until taking steps to the extent reasonably practicable to avoid foreseeable prejudice to the rights of the clients. In all matters in which inquiring counsel is attorney of record, the lawyer must obtain permission of each tribunal to withdraw, if such is required by that tribunal’s rules, before withdrawing from employment. Upon withdrawing, inquiring counsel must refund promptly any part of a fee paid in advance that has not been earned.

A lawyer does not have an absolute right to withdraw from pending cases upon deciding to retire from the practice law, and must obtain permission of the court to withdraw if the clients do not assent (See N. Y. State Opinion #178, March 1, 1971; 22 N.Y.C.R.R. § § 700 et seq.) EC 2-32 admonishes that. “[a] decision by a lawyer to withdraw should be made only on the basis of compelling circumstances…” Whether or not the courts would permit inquiring counsel to withdraw absent client consent is a question of law or procedure and not professional ethics, but it may be observed that a decision to retire from the practice is neither a mandatory nor permissible ground specified in DR 2-110 (B) or (C) , respectively, for withdrawing from employment.

The ethical obligations of a retiring lawyer are no different from those of any other withdrawing lawyer. DR 2-110 sets forth the rules governing withdrawal from employment. This Committee does not address the requirements of statute or rule for the withdrawal as attorney of record before a particular tribunal (for example, CPLR 321 (b)) , except to note that DR 2-110 (A) (1) requires that:

If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.

Also see, EC 2-32.

Nor does obtaining client and/or court permission of itself relieve the retiring lawyer of further ethical obligations. DR 2-110(A)(2) provides:

Even when withdrawal is otherwise permitted or required under [Sec. 1200.15] DR 2-110(A)(1), “B) or (C) , a lawyer shall not withdraw from employment until the lawyer has taken steps to the extent reasonably practicable to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules.

Also see, EC 2-32; N.Y. State Opinion #212, November 22, 1971; and, Raphael v. Shapiro, 154 Misc.2d 920, 587 N.Y.S.2d (58 (Sup. Ct. N.Y. Co. 1992) (Tom, J.) (dismissing a complaint for enforcement of provisions of a contract to sell an ongoing law practice, and citing the ethical obligations embodied in DR 2-110 (A) (2) as among those violated by the agreement).

The cited State opinion #212 adds that the withdrawing lawyer- should cooperate with subsequently employed counsel in fulfilling- the obligation to minimize prejudice to the client. The steps specified in DR 2-110 (A) (2) to be taken by a withdrawing lawyer to avoid foreseeable prejudice to the a client are illustrative and. not exclusive. Protection of the client from prejudice resulting, from the withdrawal is the paramount consideration.

In sum, upon accepting employment in a matter, a lawyer is not. free to unilaterally terminate the employment or to, abandon thet lawyer/client relationship. Even where the contractual obligations of the lawyer may be terminated by client or court, ethical. obligations rising from the relationship remain. What. particular steps the retiring lawyer must take to fulfill those obligation will be dictated by the nature of the foreseeable prejudice to be avoided under the circumstances and the extent to which particular steps that the lawyer might possibly take to avoid that prejudice are “reasonably practicable” (DR 2-110 (A) (2)). The fact that the, withdrawal is precipitated by the voluntary retirement of the lawyer does not change the analysis. If there are exigent circumstances surrounding retirement, then the lawyer should seek assistance from other lawyers, or from a bar association, or from a lawyer’s assistance committee.

The portions of the inquiry pertaining to the amount of the fees inquiring counsel may be entitled to obtain or retain upon withdrawal principally present matters of substantive law and not questions of professional ethics. It is noted however that DR 2– 110(A)(3) provides that “[a] lawyer who withdraws from employment. shall refund promptly any part of a fee paid in advance that has not been earned.” Also see, EC 2-32: ” . . . . the [withdrawing] lawyer should refur@d-to the client any compensation not earned during the employment.” Thus, to the extent inquiring counsel may have received payment for services contemplated but not provided as of the time of the withdrawal (as may well have Occurred in connection with the matters for which a flat fee was re@ceived) , het or she will be obligated upon -W–Lth-drawa’L ‘Lo promptly refund II.-het portion of the fee paid but not earned. In re Cooperian, 83 N.Y. 2d 465, 633 N.E. 2d 1069, 611 N.Y.S. 2d 465 (1994).

(Approved by Executive Committee on 6/6/95; Approved by Full Committee on 7/28/95)