Bar Counsel Notes: Termination/withdrawal of representation

Attorney B wants to withdraw from representing a client because the client is not paying her fees, but questions whether M. Bar R. 3.5(a)(3) and 3.5(c)(6) may be inconsistent?

Bar Rule 3.5(c)(6) is straightforward: non payment of legal fees in contravention of an obligation or agreement to pay an attorney is a proper ground to seek permissive withdrawal from representation of a client. Although Bar Rule 3.5(a)(3) - "withdrawal shall not be conditioned upon payment by the client for services to date" - may seem confusing or inconsistent, it is not. Rule 3.5(a)(3) means that an attorney cannot condition the termination of representation of a client on that client first having to pay the attorney for all legal services rendered to date. In other words, this Rule prevents an attorney from making a client keep the attorney unless the client pays to end an attorney's representation, while Rule 3.5(c)(6) still allows an attorney to request permission to withdraw when a client's fee payments are in arrears.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.