Can a matrimonial lawyer use a retainer agreement where the client consents in advance that listed grounds, including nonpayment, let the lawyer withdraw?

Plain-English summary

A lawyer proposed a domestic relations retainer agreement under which the client would consent in advance that specified grounds, including nonpayment, refusal to follow advice, refusal to retain recommended experts, and bill delinquency, would be "good cause" for the lawyer to withdraw. Part 1400 of the Appellate Division rules requires a written matrimonial retainer that states the circumstances under which the attorney might seek to withdraw for nonpayment. The committee assessed whether the proposed clauses were proper.

Two principles framed the analysis. First, a retainer may not authorize withdrawal in circumstances where DR 2-110 would not permit it; even where grounds exist, a lawyer in a tribunal proceeding must obtain the tribunal's permission if its rules require, and must avoid foreseeable prejudice to the client. Second, citing N.Y. State 599 (1989), a retainer may not mislead the client about the lawyer's obligations, including the duty to continue absent a permissible ground for withdrawal; the essence of the matter is clarity that assures the client's full understanding. Nothing in Part 1400 authorizes a matrimonial retainer that contravenes DR 2-110 or is misleading.

Applying these principles, the committee found the proposed agreement misleading in several respects. Stating that the listed circumstances "shall be good cause for withdrawal" implied the lawyer had an absolute right, perhaps even a duty, to withdraw; the committee said language that the circumstances "may" be good cause would be less confusing. The agreement also failed to reference DR 2-110's limits (tribunal consent and avoiding foreseeable prejudice), misleadingly implying the lawyer could simply terminate on notice. In a footnote, the committee added that requiring the client to give written notice to start fee arbitration, where neither Part 136 nor Part 1400 requires writing, would violate DR 7-106(A) (disregarding a standing rule of a tribunal). The committee answered the question in the negative.

Currency note

This opinion was issued in 1999, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a matrimonial retainer let the client consent in advance to the lawyer's withdrawal on listed grounds?

A: The opinion concluded the proposed agreement was improper, because it misled the client by implying an absolute right to withdraw on those grounds without DR 2-110's limits.

Q: What did the agreement leave out?

A: The opinion held it failed to reference DR 2-110's requirements that the lawyer obtain the tribunal's permission where required and take steps to avoid foreseeable prejudice to the client before withdrawing.

Q: What was wrong with the fee-arbitration notice provision?

A: The opinion stated that requiring written notice to initiate fee arbitration, where the court rules (Parts 136 and 1400) do not require writing, would violate DR 7-106(A) by disregarding a standing rule of a tribunal.

Background and rules framework

The opinion interpreted DR 2-110 (withdrawal from employment), DR 2-102(A)(1), and DR 7-106(A) (disregarding a tribunal's standing rules) of New York's former Code of Professional Responsibility, against the matrimonial retainer requirements of Part 1400 of the Appellate Division rules. The Model Rule analogues are Rule 1.16 (declining or terminating representation) and Rule 1.5 (fees and fee agreements). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation)
• MR 1.5 (fees)
• NY DR 2-110; DR 2-102(A)(1); DR 7-106(A)

Statutes and rules:

• 22 NYCRR Part 1400 (procedures for attorneys in domestic relations matters); 22 NYCRR Part 136 (fee arbitration)

Other opinions cited:

• N.Y. State 599 (1989): a retainer may not mislead the client; nonrefundable-retainer provisions and the need for clarity

See also

• NY State Bar Op. 1144: Limiting communications and withdrawing from a difficult client
• NY State Bar Op. 823: Joint representation, diverging strategies, and withdrawal
• NY State Bar Op. 739: Lawyer referral service fees in domestic relations matters

Source

• Landing page: https://nysba.org/opinion-719/