Can a lawyer bill a client for the time spent preparing and arguing a motion to withdraw from the case?

Plain-English summary

The opinion addresses whether a lawyer may charge a client, at the lawyer's regular hourly rate, for the work of preparing, filing, and arguing a motion to withdraw from a case. The general answer is no. Once a lawyer makes a formal appearance in a North Carolina court proceeding, the lawyer must obtain the tribunal's permission to withdraw (Rule 1.16(c); N.C. General Rules of Practice, Rule 16). Because the act of withdrawal is the lawyer's own professional obligation, performed for the lawyer's benefit, the cost cannot be shifted to the client.

The opinion makes clear that fault is irrelevant. Whether the client discharges the lawyer or the lawyer decides to withdraw, and regardless of who is "at fault," the cost of the required motion is the lawyer's professional duty and may not be billed to the client (drawing an analogy to 2000 FEO 7, which barred charging a client for the lawyer's participation in the State Bar's fee dispute resolution program). It does not matter that the court denies the motion; the work still cannot be billed. And a lawyer may not put a provision in a standard fee agreement shifting the cost of withdrawal to a client who terminates the lawyer, because such a provision would improperly chill the client's right to discharge counsel at will.

The opinion recognizes two exceptions. First, where a lawyer must withdraw to advance the client's own objectives, rather than because of dissatisfaction or the lawyer's wish to end the representation, the withdrawal is an additional legal service to the client; the example is insurer-retained defense counsel who withdraws after the carrier is relieved of its duty to defend. There, subject to Rule 1.5's bar on clearly excessive fees, the lawyer may charge for the withdrawal work and may include a provision to that effect in the fee agreement. Second, a court-appointed lawyer who must withdraw because of a breakdown in the relationship, a conflict, or similar circumstances may include the withdrawal charges in a fee petition reviewed by the court, provided the lawyer in good faith concludes the lawyer's own conduct is not the reason for the motion; judicial review supplies oversight, and unlike in private representation, seeking compensation will not chill the client's right to end the relationship. (The opinion notes the lawyer need not itemize the client's conduct leading to the motion, which is often confidential under Rule 1.6.)

In practice

Under the North Carolina rules as they stood at the time of the opinion, the cost of a motion to withdraw is the lawyer's own professional obligation under Rule 1.16(c) and generally may not be billed to the client, regardless of who ended the relationship or whether the motion is granted. Per the opinion, a fee-agreement clause charging a discharging client for withdrawal is improper because it would chill the client's right to discharge counsel.

Per the opinion, two exceptions apply: a lawyer may charge (subject to Rule 1.5) where withdrawal advances the client's own objectives, such as insurer-defense withdrawal; and a court-appointed lawyer may seek the cost in a court-reviewed fee petition where the lawyer's own conduct did not cause the withdrawal.

Common questions

Q: Can a lawyer bill a client for the time spent withdrawing from a case?

A: Generally no. The opinion concludes that obtaining the court's permission to withdraw is the lawyer's professional obligation under Rule 1.16(c), so the cost cannot be shifted to the client.

Q: Does it matter whether the client fired the lawyer or the lawyer chose to leave?

A: No. The opinion concludes fault is beside the point; regardless of who ends the relationship, the cost of the required motion is the lawyer's professional duty and may not be billed to the client.

Q: Can a fee agreement require the client to pay for the lawyer's withdrawal?

A: No, with one exception. The opinion concludes such a provision would improperly chill the client's right to discharge counsel, except where withdrawal advances the client's own objectives, in which case the agreement may provide for it (subject to Rule 1.5).

Q: Can a court-appointed lawyer recover the cost of withdrawing?

A: Yes, through the court. The opinion concludes a court-appointed lawyer may include withdrawal charges in a court-reviewed fee petition, provided the lawyer in good faith concludes the lawyer's own conduct did not cause the motion.

Background and rules framework

The opinion applies North Carolina Rule 1.16(c) (a lawyer must comply with applicable law requiring a tribunal's permission to terminate a representation) and Rule 1.5 (no clearly excessive fee), against the backdrop of the client's right to discharge a lawyer at will. These track Model Rules 1.16 and 1.5. The central premise is that the work of obtaining leave to withdraw benefits the lawyer's compliance with professional duties, not the client, so its cost is normally the lawyer's to bear.

Citations and references

Rules of Professional Conduct:

• MR 1.16 / NC Rule 1.16(c) (complying with law requiring the tribunal's permission to withdraw)
• MR 1.5 / NC Rule 1.5 (no clearly excessive fee)

Statutes:

• N.C. General Rules of Practice for the Superior and District Courts, Rule 16 (permission to withdraw after appearance)

Other opinions cited:

• NC 2000 FEO 7: a lawyer may not charge a client for time spent in the State Bar's fee dispute resolution program, a professional responsibility; applied by analogy.

See also

• ABA Formal Op. 476: Confidentiality and Withdrawal for Nonpayment of Fees
• ABA Formal Op. 505: Fees Paid in Advance

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2007-formal-ethics-opinion-8/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Attorney A is hired by Client to represent him on a matter in litigation. After representing Client for some period of time, Client informs Attorney A that he is no longer satisfied with his services and he discharges Attorney A. Pursuant to the requirements of Rule 1.16 and court rules, Attorney A prepares a motion to withdraw, files the motion, and successfully argues the motion to the court. After he withdraws, Attorney A prepares a final bill for his services that includes charges, at his regular hourly rate, for the time that he expended preparing and presenting the motion.

May Attorney A charge Client for the legal work necessary to withdraw from the case?

Opinion #1:

No. Rule 1.16(c) requires a lawyer "to comply with applicable law requiring notice to or permission of a tribunal when terminating a representation." Once a lawyer makes a formal appearance in a North Carolina court proceeding, the lawyer must obtain the tribunal's permission to withdraw. E.g., N.C. General Rules of Practice for the Superior and District Courts, Rule 16. Thus, the act of withdrawal is a professional obligation of the lawyer, for the benefit of the lawyer, and, with the exceptions described in opinions #5 and #6 below, the cost of withdrawal cannot be shifted to the client.

Inquiry #2:

Does it matter whether the lawyer decides to withdraw against the client's wishes or the client discharges the lawyer?

Opinion #2:

No. Whether the client or the lawyer is the first to conclude that the relationship must end, determining who is at fault or the motivation of the client or the lawyer when ending the relationship is often impossible and, ultimately, beside the point. Regardless of who may be at fault, the cost of the work necessary to file and argue a motion to withdraw must be incurred because the lawyer is required by the Rules of Professional Conduct and the court rules to obtain the permission of the court to withdraw. It is the lawyer's professional duty and, therefore, the lawyer may not shift the cost to the client. Cf., 2000 FEO 7, Charging a Legal Fee for Participation in the Fee Dispute Resolution Program (participation in State Bar's fee dispute resolution program is a professional responsibility making it improper to charge the client for the time expended to participate).

Inquiry #3:

The court denies Attorney A's motion to withdraw. May Attorney A subsequently bill Client for the legal work necessitated by the motion to withdraw?

Opinion #3:

No, see opinions #1 and #2 above.

Inquiry #4:

Attorney A wants to include a provision in his standard legal services agreement that states that the client will pay the cost of preparing, filing, and arguing a motion to withdraw if the client terminates the lawyer's services.

If a client consents to this provision in a legal services agreement, may Attorney A subsequently charge the costs to the client if the client terminates his services?

Opinion #4:

With the exception of the situation described in opinion #5 below, a lawyer may not include a provision in his legal services agreement shifting the cost of withdrawal to the client. See opinions #1 and #2 above. Such a provision would have an improper chilling effect on a client's right to terminate a lawyer's services at will.

Inquiry #5:

On occasion, a lawyer must file a motion to withdraw, with the consent of the client, to advance the client's objectives for the representation and not because the client is dissatisfied with the lawyer's services or the lawyer wishes to terminate the representation. For example, an insurance carrier hires a lawyer to defend its insured in a personal injury lawsuit. Before trial, the carrier offers the full policy limits to the plaintiff. The carrier hires another lawyer to file the appropriate motion seeking to have the carrier relieved of its duty to defend the insured. The lawsuit must go forward, however, to determine whether there is liability entitling the plaintiff to recover the proceeds from an underinsured or other excess liability insurance policy. If the motion to be relieved of the duty to defend is allowed, the lawyer originally hired to defend the insured must make a motion to withdraw to further the insurance carrier's objective of being relieved of the duty to defend. The insurance carrier typically anticipates and assumes that it will pay the legal fees associated with the preparation and presentation of the motion to withdraw.

If a lawyer must withdraw from the representation of a client in a lawsuit to advance the client's objectives for the representation, may the lawyer charge the client for the legal work necessary to withdraw? May the lawyer include a provision in his legal services agreement with the client stating that the client will pay the legal fees for withdrawal under these circumstances?

Opinion #5:

Yes, in this instance, the lawyer is providing a legal service to the client in addition to fulfilling his professional obligation under Rule 1.16(c). Subject to the limitation on clearly excessive fees in Rule 1.5, a lawyer may charge a client for the legal work necessary to withdraw if withdrawal advances the client's objectives for the representation and the lawyer may include a provision in his legal services agreement to this effect.

Inquiry #6:

The client-lawyer relationship between a court-appointed lawyer and a client is often difficult because the client does not select the lawyer. In addition, a court-appointed lawyer may not have an opportunity to check for conflicts of interest prior to being appointed or, in the criminal defense practice, a conflict of interest may not be apparent until the case evolves (e.g., the lawyer realizes that a plea agreement involves cooperation with the authorities that will negatively impact another client of the lawyer). If withdrawal from representation by a court-appointed lawyer is necessitated by a breakdown in the relationship or a conflict of interest or other similar circumstances, may the lawyer include the charges associated with filing and presenting the motion in a fee petition which is reviewed by the court?

Opinion #6:

Yes, provided the lawyer, in good faith, concludes that the lawyer's conduct is not the reason for the motion.1 Judicial review provides oversight to insure that the fee charges are warranted and, unlike in private representation, seeking compensation for filing the motion will not have a chilling effect on the client's right to terminate the relationship.

End Notes

• This opinion does not require the lawyer to itemize or describe the conduct of the client leading to the motion to withdraw in the petition for fees. In many instances, this information will be confidential and cannot be disclosed. Rule 1.6.