Lawyers are not required to provide free legal services to clients who fail to pay the agreed fees and may move to withdraw. While withdrawal for failure to pay fees is permissible, a lawyer must do so carefully to avoid malpractice claims and ethics complaints. The recent ABA Ethics Formal Opinion 476 Confidentiality Issues when Moving to Withdraw for Nonpayment of Fees in Civil Litigation (12/19/2016) provides sound guidance for withdrawing from a civil suit under the supervision of a judge.
The opinion compares a lawyer’s duty of confidentiality when moving for withdrawal for failure to pay fees with a court’s need for sufficient information to rule on the motion. The permissive authority to withdraw is contained in ABA Model Rule 1.16 in the following paragraphs:
 the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
 the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client;
Comment  to the rule reinforces this authority: A lawyer may withdraw if the client refuses to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs ….
[Editor’s Note: Kentucky Rule of Professional Conduct SCR 3.130, 1.16  and , and Comment  are identical to the Model Rule.]
The opinion next addressed the requirements of Model Rule 1.6, Confidentiality of Information, that a lawyer must consider in making a withdrawal motion for non-payment of fees. It was reasoned, “that specific information should not be required with respect to a motion to withdraw for nonpayment of legal fees” based on Comment  to Rule 1.16:
The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. ….
Editor’s Note: Kentucky Rule of Professional Conduct SCR 3.130, 1.16 Comment  is identical to the Model Rule.
The opinion then considered the scope of the judicial inquiry of the withdrawal motion, noting that courts have wide discretion in ruling on motions to withdraw. This analysis includes case examples of the range of rulings judges have made on how much information they required. The opinion concluded by offering stepped guidance for lawyers to comply with confidentiality duties depending on the judge’s requirements:
“Thus, in order to comply with Rule 1.6, a lawyer who has a good faith basis for withdrawal under Rule 1.16[b] and/or 1.16[b], and who complies with the applicable procedural prerequisites of the court for such motions, could:
(1) initially submit a motion providing no confidential client information apart from a reference to “professional considerations” or the like;
(2) upon being informed by the court that further information is necessary, respond, when practicable, by seeking to persuade the court to rule on the motion without requiring the disclosure of confidential client information, asserting all non-frivolous claims of confidentiality and privilege; and if that fails;
(3) thereupon under Rule 1.6[b] (Rule 1.6[b] in Kentucky) submit only such information as is reasonably necessary to satisfy the needs of the court and preferably by whatever restricted means of submission, such as in camera review under seal, or such other procedures designated to minimize disclosure as the court determines is appropriate.If the court expressly orders the lawyer to make further disclosure, the exception in Rule 1.6[b] (Rule 1.6[b] in Kentucky) for disclosures required to comply with a court order will apply, subject to the lawyer’s compliance with the requirements of Comment .” (Rule 1.6, Comment  in Kentucky).
This opinion is highly recommended professional reading for both Kentucky lawyers and judges. Just Google the citation.
Our risk management advice for withdrawal is:
*From KBA Bench & Bar article “How To Fire A Client” available at LMICK.com. Go to Resources, click on Bench & Bar Articles page, and click on the article.