Can a lawyer withdraw from a litigated case when the client cannot afford to pay the fee, and does the lawyer need the court's permission if the client consents to the withdrawal?
NY State Bar Ethics Opinion 598: Withdrawing from a litigated matter for nonpayment of fees
Short answer: The opinion concluded that a client's nonpayment due to inability to pay can be a "deliberate" disregard of the fee obligation that warrants permissive withdrawal, but in a litigated matter the lawyer must apply to the tribunal for leave to withdraw; no court permission is ethically required, absent a court rule, only where the client knowingly consents and substitute counsel has been retained.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The committee addressed two questions about withdrawing from a litigated matter for nonpayment of fees. On the first, it interpreted DR 2-110(C)(1)(f), which lets a lawyer apply to withdraw when a client "deliberately disregards" a fee obligation. Earlier opinions had said a mere, non-deliberate failure to pay does not justify withdrawal, leaving open whether a failure caused by financial inability counts as "deliberate." The committee held that it can: a client deliberately disregards the obligation whenever the failure is conscious rather than inadvertent and is not de minimis in amount or duration, even where it results from inability to pay. It rejected reading "deliberate" to require a purposeful refusal, reasoning that doing so would automatically resolve the competing interests against withdrawal and read the lawyer's legitimate expectation of payment out of the analysis. The committee aligned itself with decisions such as Pennsylvania v. Scheps and noted that the lawyer has no obligation to finance litigation or render gratuitous services, even though EC 2-25 recognizes a general duty to serve those who cannot pay.
The committee stressed that withdrawal is not automatic even when the ground exists. Under DR 2-110(A)(2) the lawyer must take reasonable steps to avoid foreseeable prejudice, and factors such as the work remaining, the fees already paid, and the likely effect on the client must be weighed. Because the lawyer's own financial interest is at stake (DR 5-101(A)), the committee held the lawyer should not make this judgment unilaterally in a litigated matter; the lawyer should apply to the tribunal for permission to withdraw even if the court's own rules do not require leave. It noted this is a change from the predecessor Canon 44, which had allowed withdrawal in litigated matters without reference to a tribunal, and explained that requiring application to the court is what allows the competing factors to be weighed fairly.
On the second question, the committee held that judicial permission is not ethically required, absent a court rule, where the client has knowingly and freely assented to termination under DR 2-110(C)(5) and successor counsel has already been substituted, because none of the competing concerns remains except the tribunal's own interest, which it can protect through its rules. Mere consent without substitute counsel is not enough; the consent must be knowing and free, tested to the tribunal's satisfaction where withdrawal would leave the client unrepresented. The committee distinguished a client's discharge of the lawyer, which is mandatory withdrawal under DR 2-110(B)(4) and needs no court permission absent a court rule, from a client's consent to the lawyer's withdrawal, which is governed by DR 2-110(C)(5).
Currency note
This opinion was issued in 1989, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009 (withdrawal, including for nonpayment, now appears at Rule 1.16). 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: Can a lawyer withdraw for nonpayment when the client genuinely cannot pay?
A: Yes, in appropriate cases. The committee held that nonpayment due to inability to pay can be a deliberate disregard of the fee obligation under DR 2-110(C)(1)(f) when the failure is conscious and not de minimis, though withdrawal is not automatic and depends on the circumstances.
Q: Does the lawyer need the court's permission to withdraw?
A: Generally yes, in a litigated matter. The committee held the lawyer should apply to the tribunal for leave even if the court's rules do not require it, because the lawyer's own financial interest is at stake and an impartial tribunal should weigh the competing factors.
Q: Is there an exception when the client consents?
A: Yes. The committee held that, absent a court rule, no permission is required where the client knowingly and freely consents under DR 2-110(C)(5) and substitute counsel has already been retained.
Q: Is a client's discharge of the lawyer treated the same as consent to withdraw?
A: No. The committee distinguished discharge (mandatory withdrawal under DR 2-110(B)(4), needing no court permission absent a court rule) from the client's consent to the lawyer's own request to withdraw under DR 2-110(C)(5).
Background and rules framework
The opinion interpreted the New York Code withdrawal provisions: permissive withdrawal for deliberate disregard of a fee obligation (DR 2-110(C)(1)(f)), withdrawal on the client's knowing assent (DR 2-110(C)(5)), the duty to avoid foreseeable prejudice (DR 2-110(A)(2)), mandatory withdrawal on discharge (DR 2-110(B)(4)), and the personal-interest provision DR 5-101(A), against the backdrop of EC 2-16 and 2-25 on serving those unable to pay. The closest Model Rule analogue is Rule 1.16 (declining or terminating representation, including for a client's failure to fulfill an obligation regarding the lawyer's services and the requirement of tribunal permission where applicable).
Citations and references
Rules of Professional Conduct:
- MR 1.16 (declining or terminating representation; withdrawal for nonpayment; tribunal permission)
- NY DR 2-110(A)(1), (A)(2); DR 2-110(B)(4); DR 2-110(C)(1)(f); DR 2-110(C)(5); DR 5-101(A); EC 2-16, 2-25
Cases:
- Pennsylvania v. Scheps, 523 A.2d 363 (Pa. Super. 1987): nonpayment from inability to pay can be a deliberate disregard warranting withdrawal
- Holmes v. YJA Realty Corp., 128 A.D.2d 482 (1st Dep't 1987): counsel need not finance litigation for a nonpaying client
Other opinions cited:
- N.Y. State 178 (1971): the purpose of requiring judicial permission to withdraw
- N.Y. State 212 (1971); N.Y. State 440 (1976): a non-deliberate failure to pay does not justify withdrawal
See also
- NY State Bar Op. 599: Nonrefundable minimum fee retainer agreements
- NY State Bar Op. 604: Limiting a criminal representation to the grand jury stage
Source
- Landing page: https://nysba.org/opinion-598/