Can a criminal-defense lawyer who has entered an appearance fail to prepare and move to withdraw on the day of trial because his fee was not paid?

Plain-English summary

The committee addressed a criminal case in which two lawyers appeared at the defendant's arraignment, advised the court they had been employed to represent him, and let the case be set for trial on a day certain. On the day of trial, for the first time, they moved for leave to withdraw because they had not been paid, and it appeared they had made no preparation for trial. The trial was continued and the defendant remained in jail unable to make bond. The committee answered that they could not properly do this.

The committee held that the existence of an attorney-client relationship does not depend on prepayment of a fee. Quoting Am Jur 2d, Attorneys at Law, section 91, it said employment is sufficiently established when the lawyer's advice and assistance are sought and received in matters pertinent to his profession. A lawyer who does not intend to render services until paid has not been employed and must say so; he must not tell the tribunal he has been employed or render services until he is in fact paid. Because these lawyers advised the court they represented the defendant and rendered services to him, an attorney-client relationship existed from the arraignment at the latest, whatever fee arrangement they had with the client.

On withdrawal, the committee said the Code's rules could not be clearer in this context. Under DR 2-110(C), a lawyer may request leave to withdraw in a pending matter if the client deliberately disregards a fee obligation, but under DR 2-110(A) he may not withdraw until he has taken reasonable steps to avoid foreseeable prejudice to the client's rights, which the lawyers did not attempt until the day of trial, if then. In the meantime they had a duty to prepare for trial under DR 6-101(A)(3), EC 2-31, and EC 6-4, and they did not do so. The committee added that the lawyers also breached their duty to the court and opposing counsel.

Currency note

This opinion was issued in 1976 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does an attorney-client relationship depend on the fee being paid first?

A: No. The committee held that employment is established when the lawyer's advice and assistance are sought and received, citing Am Jur 2d, Attorneys at Law, section 91; prepayment of a fee is not required.

Q: If a lawyer will not act until paid, what must he do?

A: The committee held he must make that clear to the client and must not tell the tribunal he has been employed, or render services, until he has in fact been paid.

Q: Can a lawyer wait until the day of trial to move to withdraw for nonpayment?

A: No. The committee held that even though DR 2-110(C) permits seeking leave to withdraw for a deliberately disregarded fee obligation, DR 2-110(A) bars withdrawal until the lawyer takes reasonable steps to avoid foreseeable prejudice, and meanwhile the duty to prepare for trial under DR 6-101(A)(3) continues.

Background and rules framework

The opinion applied DR 2-110 of the former Code of Professional Responsibility (withdrawal from employment, including the permissive ground in DR 2-110(C) and the duty to avoid prejudice in DR 2-110(A)) and DR 6-101(A)(3) with EC 2-31 and EC 6-4 (competence and diligence, including preparation). The modern analogs are Model Rule 1.16 (declining or terminating representation) and Model Rule 1.3 (diligence).

Citations and references

Rules of Professional Conduct:

• DR 2-110(A), (C) (withdrawal from employment); DR 6-101(A)(3); EC 2-31, 6-4 (preparation and diligence); modern analogs Model Rules 1.16 and 1.3

Other authorities:

• Am Jur 2d, Attorneys at Law, section 91 (formation of the attorney-client relationship)

See also

• KBA Ethics Op. E-128: County Attorney, Police Judge Office

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-134.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-134
Issued: January 1976

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

Counsel for a defendant in a criminal case has advised the court that he represents the defendant, has undertaken specific acts of representation in the case, and knows the case has been set for trial. May he properly fail to prepare for trial and seek leave to withdraw for the first time on the day of trial because his fee has not been paid?

Answer:

No.

References:

Am Jur 2d, Attorneys at Law, § 91; DR 2-110(A)(C), 6-101(A)(3); EC 2-31, 6-4

OPINION

The defendant was indicted in May 1973. The Commonwealth could not find him. In April 1975 Lawyer A represented him in some kind of unspecified procedure on the indictment. Subsequently the defendant was found and returned to Kentucky. He was arraigned in September 1975. Lawyers A and B appeared for him at arraignment and advised the Court that they had been employed to represent him. The case was set for trial on a day certain in October 1975. On the day of trial for the first time, the lawyers filed a motion for leave to withdraw because they had not been paid a fee. It then appeared that they had made no preparation for trial. Trial was continued to January 1976. The defendant was in jail unable to give bond.

Ambiguities about the existence of an attorney-client relationship are always undesirable. In a matter pending before a tribunal, they are intolerable.

The existence of an attorney-client relationship is not dependent on prepayment of a fee. "The employment is sufficiently established when it is shown that the advice and assistance of the attorney are sought and received in matters pertinent to his profession." Am Jur 2d, Attorneys at Law, § 91.

When a client has consulted a lawyer about a matter pending before a tribunal, it is essential that the client, the opposing party, the lawyer, and the tribunal know whether the lawyer does or does not represent the client in the matter. The lawyer has an affirmative duty to make this clear to everyone concerned. In particular, if he does not intend to render services in the matter until he has first been paid, he has not been employed. He must make this clear to the client and he must not advise the tribunal that he has been employed or proceed to render services in the matter until he has in fact been paid.

We do not know what agreement about their fee these lawyers had with their client. The most charitable assumption we can make is that they told him at the beginning that they would do nothing unless they were paid first. But it does not matter what agreement they had with client, because they advised the court that they represented him and rendered services to him in the matter. From defendant's arraignment in September 1975 at the latest there was an attorney-client relationship between him and the lawyers.

The Code of Professional Responsibility sets forth rules for termination of the attorney-client relationship which, in the context of this matter, could not be clearer. A lawyer may request leave to withdraw in a matter pending before a tribunal if his client deliberately disregards an agreement or obligation to the lawyer concerning expenses or fees, DR 2-110(C) But he may not withdraw until he has taken reasonable steps to avoid foreseeable prejudice to his client's rights, DR 2-110(A). The lawyers made no attempt to comply with this rule until the day of the trial, if then.

In the meantime, an attorney-client relationship existed between them and the defendant and it was their duty to prepare for trial, DR 6-101(A)(3); EC 2-31, 6-4. They did not do so and made no attempt to do so.

These lawyers also breached their duty to the court and opposing counsel. We do not believe any discussion of this point is necessary.

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.