Ethics Opinon 1978-7

November 6, 1978

SUBJECT: LEGAL ETHICS AN UNLAWFUL PRACTICE COMMITTEE SAN DIEGO COUNTY BAR ASSOCIATION

I
QUESTION PRESENTED

An attorney engaged in the practice of criminal law has inquired as to the propriety of a particular fee arrangement. Persons of modest means who come to him with criminal matters often cannot afford to pay at the outset all or some portion of his normal retainer fee. The attorney agrees to represent them upon their promise to pay his fee in accordance with an agreed upon payment schedule. His experience has been that clients with whom he makes such arrangements frequently fail to comply with the payment schedule. They believe that despite their failure to pay, the attorney is still obligated to represent them to the conclusion of their case.

In order to alleviate the problem of nonpayment, the attorney proposes to undertake the representation of such a client with the express understanding between them that if the client does not make payment before the Setting and Motion Hearing, the attorney will not appear at that hearing. The result, as explained to the client, would be that the court will issue a bench warrant for the client's arrest.

These circumstances present the following question of consideration:

"Is a fee arrangement in a criminal matter proper which provides that the attorney may automatically withdraw from the case upon the client's failure to comply with a fee payment schedule?"

II
CONCLUSION

The fee arrangement as proposed would violate the attorney's duties to both the court and his client. Unless the client consents to the attorney's withdrawal, the attorney may not withdraw without the permission of the court before which the criminal proceedings are pending. The attorney must request such permission by means of a motion or application and must give his client adequate notice of such motion or application.

III
STATUTES AND CANONS

A. Rule 2-111 of the Rules of Professional Responsibility of the State Bar of California provides in pertinent part as follows:
"Rule 2-111. Withdrawal From Employment

"(A) In general.

"(1) If permission for withdrawal from employment is required by the rules of a tribunal, a member of the State Bar shall not withdraw from employment in a proceeding before that tribunal without its permission.

"(2) In any event, a member of the State Bar shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his 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.

". . .

(B) Mandatory Withdrawal.

"A member of the State Bar representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a member of the State Bar representing a client in other matters shall withdraw from employment, if:

"(1) He knows or should know that his client is bringing a legal action, conducting a defense, asserting a position in litigation, or otherwise having steps taken for him solely for the purpose of harrassing or maliciously injuring any person or solely out of spite, or is taking or prosecuting an appeal merely for delay, or for any other reason not in good faith; or

"(2) He knows or should know that his continued employment will result in violation of these Rules of Professional Conduct or of the State Bar Act; or

"(3) His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively.

"(C) Permissive Withdrawal.

"If Rule 2-111(B) is not applicable, a member of the State Bar may not request permission to withdraw in matters pending before a tribunal and may not withdraw in other matters, unless such request or such withdrawal is because:

(1) His client:

". . . .

(f) Deliberately disregards an agreement or obligation to the member of the State Bar as to expenses or fees; . . .

". . . ."

B. California Code of Civil Procedure Section 284 provides as follows:

"The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows:

"1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes;

"2. Upon the order of the court, upon the application of either client or attorney, after notice of one to the other."

IV
DISCUSSION

Rule 2-111 of the Rules of Professional Responsibility of the State Bar of California cited above makes it clear that failure of a client to honor a fee agreement entitles the attorney to withdraw from that client's representation.

The Rule also makes it clear that where permission for withdrawal is required by the rules of tribunal, an attorney shall not withdraw from any proceeding before that tribunal without its permission. In no event shall an attorney withdraw until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel and delivering to the client all papers and property to which he is entitled.

In the fact situation presented in this memorandum, the client with whom the attorney makes the proposed fee arrangement is the subject of a criminal proceeding pending before a court. The rule is well settled that an attorney may not withdraw from a proceeding pending before a court unless he is given permission to do so either by his client or by the court.

In People v. Prince, 268 Cal. App. 2d 398 (1968), the trial court permitted defendant's counsel to withdraw by reason of nonpayment of fees. While recognizing that failure or refusal of a client to pay proper attorneys' fees after being reasonably requested to do so will furnish grounds for the attorney to withdraw, the appellate court said:

"Having undertaken the defense of a criminal case an attorney must continue with his services until he is released by the client or by the court. He may apply to the court for release from further services and for good cause shown may be released, but he may not abandon his representation at will, nor for considerations personal to himself."

Id. at 406
In People v. Massey, 137 Cal. App. 2d 623 (1955), the attorney who had represented defendant at trial and filed an appellate brief did not appear at oral argument of the appeal, nor did he offer any excuse for his absence. The appellate court made the following remarks:

"Desertion of a client is inexcusable. As long as the relationship exists it is the duty of an attorney to speak for his client at every stage of the proceedings and not leave him to his own devices and helpless in a maze of legal procedure. Having undertaken the defense of a criminal case, an attorney must continue with his services until he is released by the client or by the court. He may apply to the court for release from further service and for good cause shown may be released, but he may not abandon his representation at will nor for considerations personal to himself. [Citation omitted.] He is an officer of the court and as such owes a duty of respect for the court as well as fidelity to his client."

Id. at 626.

If permission to withdraw is not forthcoming from his client, the attorney must make a noticed motion or application to the court pursuant to Code of Civil Procedure Section 284(2) for permission to withdraw. That section has been held to apply to criminal proceedings. Mandell v. Superior Court, 67 Cal. App. 3d 1 (1977).

Even if the attorney brings a properly noticed motion or application for withdrawal, the court may in its discretion deny the request.

"The question of granting or denying an application of an attorney to withdraw as counsel (Code Civ. Proc., § 284, subd. 2) is one which lies within the sound discretion of the trial court 'having in mind whether such withdrawal might work an injustice in the handling of the case."

People v. Prince, supra at 406.

Based on the foregoing authorities, we are of the opinion that the proposed fee arrangement is not proper. It violates the attorney's duties to his client and his responsibilities to the court.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.