August 23, 2007

Ask The Lawyer

Your attorney may withdraw from case for nonpayment of fees

This week's question:
I have a good attorney on my case, but I am a little behind on my bill. Now, she is threatening to withdraw from my case unless I pay her bill in full. Can she do this? Didn't she promise to stay with me no matter what? This doesn't seem right. I have already paid her thousands of dollars!

Karen K.
Almaden Valley


Dear Karen:
Whether your attorney may withdraw from your case depends on the circumstances. So, the short answer to your question is maybe yes and maybe no.

You didn't mention what kind of case you have; so let us assume that it is a fairly routine civil case. You undoubtedly signed a fee agreement when you started your case, since you said that you have already paid your attorney thousands of dollars. (Any case generating attorney's fees of over $1,000 needs to have a fee agreement in writing.)

So, the attorney undertook your case to represent you and you promised to pay for the legal services. At the risk of oversimplification, the attorney has a right to withdraw for non-payment of fees if that can be done without "prejudice" or harm to the client.

For example, if you are going to trial next week, I don't think the attorney will try to withdraw, since that could well cause prejudice or harm to you. On the other hand, if no court dates are set and the case is rather inactive, there may be no prejudice or harm to you if the attorney withdraws and you have time to find a new attorney to represent you.

The withdrawal by the attorney can come either voluntarily or with a court order after a motion to withdraw is filed with the court. I have had to file a couple of motions to withdraw over the past 37 years, and it is not a pleasant experience.

The attorney should give you a chance to sign a "Substitution of Attorney" form rather quietly. This is a court form that states from then on your new attorney will be representing you or you will be representing yourself in pro pria persona, "pro-per" for short. In other words, you will be representing yourself. (There are a few situations where this is not allowed—but that's a topic for another day.)

After the opportunity to sign a Substitution of Attorney form is given, the attorney generally may withdraw if that can be done without prejudice, as stated above. A motion to withdraw is filed with the court and notice is provided to the client. A hearing date is set a few weeks away and you will have an opportunity to speak to the judge. Once again, barring any harm to you, ordinarily the withdrawal will be allowed.

One of the main cases allowing for such a withdrawal is People v. Prince, a 1968 case that is still good law, and provides authority for the judge to follow.

The right of an attorney to withdraw is not absolute, and the attorney must take proper steps to avoid any such prejudice or harm to the client and that proper procedure is followed. Nonpayment of the account for services rendered may be one of the grounds for withdrawal.

An attorney may not abandon the client at will and only for personal considerations, but must continue to represent the client until he or she is released by either the client or the court.

Your attorney may also be entitled to withdraw if he or she believes you have no case, since an attorney has a duty to maintain only such actions as appear to the attorney to be legal or just. For example, in Kirsch v. Duryea, the attorney was allowed to withdraw after a determination was made that the client had no case. Initially, the suit was thought to have merit, but then several doctors gave opinions that the plaintiff's injury was not due to the negligence of the defendant and the doctor who initially gave a contrary opinion later questioned his first opinion.

Of course, on the other hand, the client has a right to withdraw at any time and find a new attorney. This right is virtually absolute, but the attorney has a basic right of reasonable value compensation up to the point of termination.

So, I would suggest, Karen, that you work something out with your attorney in terms of a payment plan on the account. Go talk with her. Bring a friend along. It's sometimes surprising what can be done with a little old-fashioned talk. You said she is a good attorney, so the quality of her services is not a problem. You just need to work out the finances. That's all. I bet you can do that!

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.