LEO: Attorney/Client - Withdrawal as  LE Op. 974


Attorney/Client - Withdrawal as Attorney-Nonpayment of Fees.


October 9, 1987


A lawyer represented a client in a divorce case. After depositions and

hearings took place, the client ceased communications with the lawyer's

office and failed to appear at any further court hearings. The lawyer

scheduled a hearing to withdraw as counsel, but the court refused to allow

the lawyer to do so because he was unable to serve notice on his client. A

final decree resulting in judgment against the client for spousal support

arrearages and a monetary award in the divorce matter was entered in the

circuit court. Earlier in the divorce matter, however, a property issue

relative to the marriage arose from a ruling by the court which formed the

basis for an appeal to the Supreme Court of Virginia.


A writ was granted and briefs filed, although oral argument was not yet

scheduled. Again, no communication was received by the lawyer from the

client. Cooperation of the client was not necessary to effectively

prosecute the appeal. The client also owed the lawyer a substantial amount

of legal fees which it appeared would not be paid voluntarily.


It is not improper, given the above, for the lawyer to move to withdraw

since the client has failed to fulfill his obligations relative to the

fee. Whether or not the lawyer may actually withdraw is a matter to be

decided by the court. [ DR:2-108(B)(3); DR:2-108(C)]


It is improper, should the lawyer not be allowed to withdraw, for the

attorney to refrain from further participation in the appeal so that it

may be dismissed. [ DR:6-101(B)]


It is not improper, should it be determined that a gross imposition has

been made upon the lawyer's practice due to the client's failure to pay

the fee, for the lawyer to file a suit for his fees during the pendency of

the appeal if the attorney is granted permission to withdraw as counsel. [



Committee Opinion October 9, 1987




See also LE Op. 1117, and LE Op. 1325.