Can a lawyer withdraw when a client stops paying and then discard the client's files if the client does not pick them up?

Plain-English summary

A client stopped communicating with a lawyer and stopped paying the fees the client had agreed to pay. The lawyer wanted to withdraw and to discard the client's files if the client did not retrieve them within 30 days of notice. The Committee answered the withdrawal question under Rule 1.16: permissive withdrawal was available because the client's failure to communicate made it unreasonably difficult to carry out the employment effectively (Rule 1.16(b)(1)(D)), and because the client substantially failed to fulfill the fee agreement (Rule 1.16(b)(1)(F)). The opinion added that if the lawyer had filed an appearance in a pending court matter, the lawyer had to obtain the court's permission to withdraw even when otherwise entitled to terminate.

On the files, the Committee concluded that Rule 1.16(d)'s requirement to take reasonable steps to avoid foreseeable prejudice meant the lawyer could not discard the files merely because the client failed to retrieve them within the 30-day notice period. Rule 1.15 (safekeeping property) reinforced the duty; citing Opinion No. 94-14, the Committee noted the client is entitled to the return of all materials the client provided, for both active and inactive files, though the lawyer may recover reasonable expenses of returning them. Where the lawyer was having difficulty locating or communicating with the client, the lawyer still had to take reasonable steps to avoid prejudice and to effect delivery. The Committee suggested that a lawyer could reduce later file-disposition problems by addressing reasonable disposition procedures in the initial engagement contract.

Currency note

This opinion was issued in 2001, before Illinois adopted its current Rules of Professional Conduct, effective January 1, 2010. The Illinois Rules cited here use the pre-2010 numbering. The ISBA notes the opinion was affirmed by its Board of Governors in January 2010 as generally consistent with the 2010 Rules, though the specific standards referenced may differ. Treat this page as historical context, not current guidance.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 lawyer withdraw when a client stops paying?

A: The Committee concluded that a client's substantial failure to fulfill a fee agreement was a ground for permissive withdrawal under Rule 1.16(b)(1)(F), provided the lawyer took reasonable steps under Rule 1.16(d) to avoid foreseeable prejudice.

Q: Does a client who stops communicating give grounds to withdraw?

A: Yes. The opinion concluded that a client's ceasing to communicate, after the lawyer's reasonable efforts, made it unreasonably difficult to carry out the employment effectively, a ground for withdrawal under Rule 1.16(b)(1)(D).

Q: Can the lawyer destroy the files if the client never picks them up?

A: The Committee concluded that discarding the files after a 30-day notice would not likely comply with Rule 1.16(d)'s duty to avoid foreseeable prejudice, and that Rule 1.15 entitles the client to return of provided materials.

Background and rules framework

The opinion analyzed permissive withdrawal under Rule 1.16(b) and the duty on termination to avoid foreseeable prejudice under Rule 1.16(d), together with Rule 1.15 (safekeeping property), corresponding to ABA Model Rules 1.16 and 1.15. It drew on Hazard's "The Law of Lawyering" and the ABA Annotated Model Rules for the rule that a lawyer of record must obtain court leave to withdraw during litigation.

Citations and references

Rules of Professional Conduct:

• Illinois Rules 1.15, 1.16(b), 1.16(d) (Model Rules 1.15, 1.16)

Other opinions cited:

• ISBA Advisory Opinion No. 94-14

See also

• ISBA Ethics Op. 01-01: Former Client Access to the Lawyer's File
• ISBA Ethics Op. 12-10: Withdrawal From Representation
• NYC Bar Ethics Op. 2015-6: Duty When Client Files Are Accidentally Destroyed

Source

• Landing page: https://www.isba.org/ethics/opinions/0102