Is a lawyer on a contingent fee required to handle an appeal after losing at trial without charging more?

Plain-English summary

A lawyer was retained on a contingent fee under a standard printed-form retainer that gave the lawyer the exclusive right to take all legal steps to enforce the client's claim but did not mention appeals. After a jury returned a verdict for the defendant, the client asked the lawyer to appeal and took the position that the fee agreement obligated the lawyer to do so without further compensation. The lawyer asked whether he was ethically obligated to pursue the appeal.

The committee declined to opine on the legal question of how the retainer should be construed. It explained that DR 7-101(A)(2) bars a lawyer from intentionally failing to carry out a contract of employment for professional services, except for permitted withdrawal under DR 2-110, DR 5-102, and DR 5-105, so a lawyer has an ethical duty to perform contracted services until completion absent good cause to withdraw. The scope of that ethical obligation, the committee said, is defined by the retainer: if the contract covered the appeal, the lawyer would have an ethical duty to undertake it; if it did not, no separate ethical duty would arise. Determining what the contract covered raises questions of law and fact beyond the committee's jurisdiction, and the committee noted that New York courts tend to construe attorney-client agreements most favorably to the client.

The committee added three points. Even where a duty to appeal exists, DR 7-102(A)(2) bars knowingly advancing a claim unwarranted under existing law unless supportable by a good-faith argument for changing the law. If no contractual duty to appeal exists, the lawyer should advise the client without delay, under DR 7-101(A)(3), including any procedural steps needed to protect the client's interests. Finally, the committee pointed to EC 2-19's advice to reach a clear, written agreement on the basis of the fee.

Currency note

This opinion was issued in 1986, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. The scope of a representation is now addressed by Rule 1.2, withdrawal by Rule 1.16, and fee agreements by 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 Treat this page as historical context, not current guidance.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 current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a contingent-fee retainer automatically include handling an appeal?

A: The committee concluded it depends on the scope of the particular retainer agreement, which is a question of law and fact it could not resolve; the printed form here did not mention appeals.

Q: If the retainer does cover the appeal, must the lawyer take it without extra pay?

A: The committee concluded that if the contract obligates the lawyer to handle the appeal, DR 7-101(A)(2) creates a corresponding ethical duty to undertake it, subject to the limits on advancing meritless claims.

Q: What must the lawyer do if the retainer does not cover the appeal?

A: The committee concluded the lawyer should advise the client without delay under DR 7-101(A)(3), including any procedural steps needed to protect the client's interests, such as filing deadlines.

Q: Must a lawyer pursue an appeal that has no legal merit?

A: The committee concluded that even where a duty to appeal exists, DR 7-102(A)(2) bars knowingly advancing a claim unwarranted under existing law unless it can be supported by a good-faith argument to extend, modify, or reverse the law.

Background and rules framework

The opinion applied New York Code DR 7-101(A)(2) (not intentionally failing to carry out a contract of employment), read together with the withdrawal provisions DR 2-110, DR 5-102, and DR 5-105; DR 7-101(A)(3) (not prejudicing the client); DR 7-102(A)(2) (not advancing unwarranted claims); and EC 2-19 (clear written fee agreements). These correspond to ABA Model Rule 1.2 (scope of representation), Model Rule 1.16 (declining or terminating representation), Model Rule 1.5 (fees), and Model Rule 3.1 (meritorious claims).

Citations and references

Rules of Professional Conduct:

• New York Code DR 7-101(A)(2), DR 7-101(A)(3), DR 2-110, DR 5-102, DR 5-105, DR 7-102(A)(2); EC 2-19 (applied in the opinion)
• MR 1.2 (scope); MR 1.16 (withdrawal); MR 1.5 (fees); MR 3.1 (meritorious claims)

Cases:

• Greenberg v. Bar Steel Construction Corp., 22 N.Y.2d 210 (1968), construing attorney-client agreements favorably to the client
• Jacobson v. Sassower, 66 N.Y.2d 991 (1985), interpretation of retainer agreements
• Hansen v. Wightman, 538 P.2d 1238 (Wash. App. 1975), duty to complete contracted services

See also

• NYC Bar Formal Op. 1993-2: Contingent Fees in Will Contests
• NYC Bar Formal Op. 1988-4: Lawyer Obligations After Firm Dissolution

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1986-6/