Once the services in the retainer agreement are performed, is the lawyer obligated to continue representation on related matters, and does a fee dispute with a current client create a conflict requiring withdrawal before the lawyer may sue for fees?
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This page answers the general question as of 1994. Ezel answers yours: whether it's allowed on your facts, under the current California Rules of Professional Conduct, with citations.
Currency note
This opinion was issued in the mid-1990s, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. Former Rule 3-700 corresponds to current Rule 1.16 (declining or terminating representation). California Code of Civil Procedure section 285.1 and section 284 continue to govern attorney withdrawal in family-law and litigation contexts; California Rule of Court 376 was renumbered to Rule 3.1362. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Plain-English summary
The committee considered an attorney who represented a wife in a marital dissolution. The retainer expressly excluded appeals, other appellate-court relief, and execution on any judgment. The attorney completed services through settlement at trial. Opposing counsel failed to prepare the judgment as ordered. The client refused to authorize the attorney to prepare the judgment unless he agreed to do so without charge. The client also owed approximately $4,500 in earned fees and proposed to satisfy this by assigning her right to collect spousal support and a separate cause of action against the former husband (valued at no more than $2,000). The attorney did not wish to accept these assignments and prepared the judgment to avoid prejudicing the client.
On scope, the committee identified that the attorney-client relationship is created by contract (Neel v. Magana, Olney, Levy, Cathcart & Gelfand; Kim v. Orellana) and that where the agreement limits the attorney's services to a specific matter, there is no duty to represent the client on an unrelated matter (Sullivan v. Dunne). Because the retainer expressly excluded execution on the judgment, the attorney was not ethically required to accept continued representation through collection or initiation of an ancillary collection action, regardless of the fee dispute.
The committee identified Rule 3-700's withdrawal requirements: reasonable steps to avoid foreseeable prejudice, due notice, opportunity for employment of other counsel, return of papers, property, and advance fees, and compliance with applicable laws. The committee identified family-law withdrawal as permitted by notice of withdrawal under Code of Civil Procedure section 285.1 after judgment; in other litigation, court approval may be required under section 284 (consent of client and attorney filed with the clerk, or order on noticed motion). The committee identified California Rule of Court 376 as the procedural rule.
The committee identified that even after proper withdrawal, in circumstances where the client must act quickly to avoid waiving legal rights in the prior matter, the attorney should advise the client in writing of approaching time limitations and the wisdom of seeking substitute counsel.
On the fee-dispute conflict, the committee identified that where the attorney has not yet been substituted out or permitted to withdraw, the attorney should not institute an action against the client for unpaid earned fees. The committee identified LACBA Opinion 362 (an attorney should not sue a client for a fee unless necessary to prevent fraud or gross imposition; the attorney may sue after withdrawal) and LACBA Opinion 212 (attorney should withdraw from all matters before commencing fee or cost litigation). The committee concluded that the institution of civil action against a current client for unpaid fees is a conflict of interest; the attorney cannot maintain loyalty, zealous representation, and the duty not to prefer the attorney's interests over the client's. Suit for fees and costs must wait until all representation has terminated.
The committee identified that an attorney who properly withdraws is entitled to enforce a fee claim, including by lien on any subsequent recovery (Weiss v. Marcus; Wagner v. Sariotti; Fracasse v. Brent).
The committee emphasized that the right to sue post-termination is not a suggestion that the attorney can refuse to perform contracted services on the condition that unpaid fees be satisfied; it is improper for an attorney to refuse services because a client cannot pay, absent court approval to withdraw.
Common questions
Q: Must a California lawyer continue representation on related matters once the retainer's specified services are performed?
A: Per the opinion, no, where the retainer expressly excludes those services. The committee identified that the attorney's duty extends only to retained services.
Q: When a current client owes earned fees, may the lawyer sue while still representing the client?
A: Per the opinion, no. The committee identified the suit against a current client for unpaid fees as a conflict of interest; the lawyer should withdraw before suing.
Q: How does the lawyer withdraw from family-law representation?
A: Per the opinion, by filing a notice of withdrawal under Code of Civil Procedure section 285.1 after judgment, where available. In other litigation, court approval under section 284 may be required.
Q: Can the lawyer refuse contracted services because the client has not paid?
A: Per the opinion, no, absent court approval to withdraw. The committee identified such refusal as improper.
Q: What does the lawyer do if the former client must act quickly to avoid waiver after withdrawal?
A: Per the opinion, the lawyer should advise the client in writing of the approaching time limitations and the wisdom of seeking substitute counsel.
Background and rules framework
The opinion interprets former California Rule of Professional Conduct 3-700 (termination of employment), with Code of Civil Procedure sections 284 and 285.1 (procedures for withdrawal in litigation and family law). The committee identified the conflict analysis as drawn from prior LACBA opinions and the lien-rights analysis from Weiss v. Marcus, Wagner v. Sariotti, and Fracasse v. Brent.
Citations and references
Rules of Professional Conduct (former):
- California Rule 3-700 (termination of employment)
Statutes:
- California Code of Civil Procedure sections 284, 285.1
- California Rule of Court 376
Cases:
- Fracasse v. Brent, 6 Cal.3d 784 (Cal. 1972), client's right to discharge; quantum meruit
- Kim v. Orellana, 145 Cal.App.3d 1024 (1983)
- Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176 (Cal. 1971), attorney-client relationship by contract
- Sullivan v. Dunne, 196 Cal. 183 (Cal. 1926), limited engagement
- Wagner v. Sariotti, 56 Cal.App.2d 693 (1943), attorney's lien
- Weiss v. Marcus, 51 Cal.App.3d 590 (1975), attorney's lien
Other opinions cited:
- LACBA Formal Opinions 109, 212, 362
- ABA Code EC 2-23
See also
- LACBA Opinion 489: Retainer Provisions Limiting Malpractice Damages
- LACBA Opinion 496: Liens on Recovery in Unrelated Case
- LACBA Opinion 483: Limited Representation of Pro Per Litigants
Source
- Landing page: https://lacba.org/?pg=ethics-opinions
- Original PDF: https://lacba.org/docDownload/2010956
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