Can a lawyer discharged without cause from a contingent-fee case charge the client for work done before the discharge?

Plain-English summary

An attorney accepted a referral from another attorney and undertook the representation on a contingent fee basis. The client later discharged him (the committee assumed the discharge was without cause and that no fee division between the two attorneys was contemplated), and the original referring attorney then took over the case. The discharged attorney asked whether he could ethically charge for the services he had performed before discharge. The committee answered yes.

The committee, addressing the question for the first time, drew on two ABA Standing Committee opinions. ABA Formal Opinion 88 (Dec. 2, 1932) held it proper for an attorney to withdraw and charge the client for services performed when he discovered the client's story was untrue, and ABA Formal Opinion 165 (Aug. 23, 1936) allowed an attorney to seek compensation for services rendered to a client who decided to withdraw from pending litigation. The committee was persuaded the same rule applied here.

The committee reasoned that the client, by his own actions, made it impossible for the discharged attorney to realize any contingent fee, while DR 2-110 mandates that a discharged attorney withdraw. The attorney was thus prevented, without fault on his part, from completing the work on which his fee depended. In those circumstances, the committee saw nothing that would ethically prohibit a reasonable charge for the services performed, and noted its conclusion would be the same had the client simply abandoned the litigation without cause.

Currency note

This opinion was issued in 1973 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. The withdrawal rule it cites (DR 2-110) is now Model Rule 1.16 (and Kentucky's SCR 3.130(1.16)), and fee questions are governed by Model Rule 1.5. 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 Treat this page as historical context, not current guidance.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: Can a contingent-fee lawyer who is fired without cause still get paid?

A: Yes. The committee held that a lawyer discharged without cause, prevented through no fault of his own from earning the contingent fee, may make a reasonable charge for the services performed before discharge.

Q: Did it matter that the referring attorney took over the case?

A: The committee noted the assumption that there was to be no fee division between the two attorneys, and rested its conclusion on the discharged attorney's own services and the client's no-cause discharge, not on the referral.

Q: Would the answer change if the client just dropped the case instead of firing the lawyer?

A: No. The committee stated its conclusion would be the same had the client simply, and without cause, decided to abandon the litigation.

Background and rules framework

The opinion applied DR 2-110 of the Code of Professional Responsibility, which mandates that a discharged attorney withdraw from a case, and addressed the lawyer's right to compensation for work already performed. The modern analogs are Model Rule 1.16 (declining or terminating representation, including the duty to withdraw on discharge) and Model Rule 1.5 (fees).

Citations and references

Rules of Professional Conduct:

• DR 2-110 (Code of Professional Responsibility); modern analogs Model Rules 1.16 and 1.5

Other opinions cited:

• ABA Formal Opinion 88 (Dec. 2, 1932) (attorney may withdraw and charge for services when the client's story proves untrue)
• ABA Formal Opinion 165 (Aug. 23, 1936) (compensation for services to a client who withdraws from pending litigation)

See also

• KBA Ethics Op. E-179: Discharged Contingent-Fee Lawyer
• KBA Ethics Op. E-216: Interest, Advances, and Costs

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-073.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-73
Issued: September 1973

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:

May an attorney who accepts a case referred to him by another attorney on a contingent fee basis charge the client a fee for services performed prior to his discharge by the client where the original referring attorney accepts employment in the case?

Answer:

Yes.

References: DR 2-110

OPINION

An attorney accepted a referral from another attorney and agreed to undertake the representation on a contingent fee basis. Subsequently, the attorney was discharged by the client, and the original referring attorney then accepted employment in the case. The discharged attorney now inquires as to whether he may ethically charge a fee for services performed prior to his discharge. For purposes of this opinion, we assume that the discharge was without cause. It is further assumed that there was to be no division of fees between the two attorneys involved.
The Committee has not previously considered this question. However, two opinions by the American Bar Association Standing Committee on Ethics are instructive. In ABA Formal Opinion 88 (dated December 2, 1932), it was held proper for an attorney to withdraw from a case and charge the client for services performed where the attorney discovered the client's story was untrue. Later, in ABA Formal Opinion 165 (dated August 23, 1936), it was ruled that an attorney could ethically seek compensation for services rendered to one of several clients who decided to withdraw from pending litigation.
The Committee is persuaded that the same rule applies to the present facts. By his actions the client has here made impossible the realization of any contingent fee by the discharged attorney. Under the facts of this inquiry, the attorney did nothing to merit his replacement. Yet, DR 2-110 is mandatory in its requirement that a discharged attorney withdraw from a case. Thus, the attorney finds himself in a situation where, without fault on his part, he is prevented from bringing to a successful conclusion the representation for which he was employed and upon which his fee was originally made to depend. In such circumstances the Committee sees nothing which would ethically prohibit counsel from making a reasonable charge for the services performed by him. Our conclusion would be the same had the client simply and without cause decided to abandon his litigation.

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.