Can a lawyer who represents employees in workers' compensation cases switch to representing their employers, withdraw from pending matters, and still collect fees for work already done?
Ohio BPC Opinion 88-024: Withdrawal, Former-Client Conflicts, and Fees Earned Before Withdrawal
Short answer: The Board concluded that a lawyer may not oppose a former client in a substantially related matter, may withdraw from a current matter only on compelling circumstances and with the client's consent (and any required tribunal permission), must minimize prejudice when withdrawing, and is entitled to fees in proportion to the services performed before withdrawal.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct'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. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
The Ohio Board of Professional Conduct withdrew this opinion by Advisory Opinion 2019-1, adopted February 8, 2019. It is no longer current guidance and is indexed here for historical research only. The opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 1.16 on withdrawal, 1.9 on former clients, and 1.5 on fees) before relying on any specific rule mentioned here.
Plain-English summary
A lawyer who represented claimants in workers' compensation cases had been approached by employers, some of whom employed his current or former clients, to represent the employers. He asked how to handle former clients with no pending matters, whether he could withdraw from pending matters to take on an employer (without representing the employer against that client), whether he could refer the client elsewhere, and whether he could charge for work done before alternative counsel was retained.
On the former-client question, the Board concluded he could not represent a client against a former client in a matter substantially related to the former representation, because the duties of loyalty and confidentiality survive the end of the lawyer-client relationship. It stated the best way to obtain counsel for the employer was to leave that decision to the employer, though the lawyer could recommend another lawyer. On withdrawal, the Board quoted DR 2-110(A): a lawyer must obtain tribunal permission where required and must take reasonable steps to avoid foreseeable prejudice, including due notice, time to find other counsel, and delivery of the client's papers and property. Under DR 2-110(C), permissive withdrawal requires a listed ground, and DR 2-110(C)(5) makes withdrawal permissive where the client knowingly and freely assents, so whether the lawyer could withdraw depended on the clients' consent. The Board declined to define "compelling circumstances," leaving that to the lawyer's professional judgment (EC 2-31). On fees, it concluded the lawyer was entitled to fees in proportion to the services performed and responsibility assumed before withdrawal (DR 2-107(A)(2)), while encouraging amicable resolution of any fee disputes (EC 2-22).
Common questions
Q: Could the lawyer represent an employer against a former client?
A: Not in a substantially related matter. The Board concluded that the duties of loyalty and confidentiality survive the representation, so the lawyer could not oppose a former client in a matter substantially related to the prior representation.
Q: Could the lawyer withdraw from a pending matter to take the employer's side of the business?
A: Only with consent. The Board concluded that withdrawal required compelling circumstances and the client's knowing and free assent under DR 2-110(C)(5), plus tribunal permission where required and reasonable steps to avoid prejudice.
Q: Could the lawyer still collect fees for work already done?
A: Yes. The Board concluded the lawyer was entitled to fees in proportion to the services performed and responsibility assumed before withdrawal, and encouraged resolving any fee dispute amicably.
Background and rules framework
The opinion applies former DR 2-110 (withdrawal from employment), DR 2-107(A)(2) (division and entitlement to fees), and ethical considerations EC 2-31 and EC 2-22 of the Ohio Code of Professional Responsibility, along with the duty to former clients. The current parallels are Ohio Prof. Cond. R. 1.16 (declining or terminating representation), 1.9 (duties to former clients), and 1.5 (fees), with Model Rules 1.16, 1.9, and 1.5.
Citations and references
Rules of Professional Conduct:
- Former DR 2-110, Ohio Code of Professional Responsibility
- Former DR 2-107(A)(2), Ohio Code of Professional Responsibility
- Former EC 2-31 and EC 2-22, Ohio Code of Professional Responsibility
Cases:
- Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973), survival of the duty of confidentiality
- Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706 (7th Cir. 1976), avoiding adverse representation related to a former matter
- Goldsmith v. Pyramid Communication, Inc., 362 F. Supp. 694 (S.D.N.Y. 1973), not abandoning a representation without reasonable cause
Other opinions cited:
- ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1322 (1975): duties to a former client
See also
- Ohio BPC Opinion 1988-021: Conflict in Representing a Public Board and Opposing Landowners
- Ohio BPC Opinion 1988-026: Fee Division and "Responsibility Assumed"
- Ohio BPC Opinion 1988-011: Landlord-Lawyer and No Duty to Notify Tenant's Prior Counsel
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-024.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 88-024
Issued August 12, 1988
Withdrawn by Adv. 2019-01
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
[Not current-subsequent rule amendments regarding division of fees in DR 2-107, eff. Aug. 1, 1990.]
SYLLABUS: An attorney may withdraw from employment only on the basis of compelling circumstances and must obtain the client's consent prior to withdrawing from the representation. A lawyer may be required to obtain permission from the tribunal before withdrawing from employment in a proceeding before that tribunal. If a lawyer is justified in withdrawing from employment he or she must take considerable care and endeavor to minimize the possible adverse effect on the rights of his or her client and the possibility of prejudice to the client as a result of the withdrawal. In addition, a lawyer should give due notice to his client that he is withdrawing to allow time for employment of other counsel. He should deliver to his client all papers and property to which the client is entitled. A lawyer may not represent a party in an action against a former client in a matter that is substantially related to the former representation. An attorney is entitled to a division of the fee in proportion to the services performed and responsibility assumed in the representation prior to the withdrawal.
OPINION: We have before us your request for an advisory opinion regarding your practice of law. At the present time you represent claimants in Workers' Compensation cases and have been approached by a few employers who wish to hire you to represent them in their Workers' Compensation matters. As you indicate, for each of these employers, you have one or more clients who are employees of theirs. Your specific questions are raised in two scenarios which are quoted below.
First, there are those clients whom I have represented in the past for whom there are no matters pending at this time. ...I do not believe that I could represent an employer against those claimants. ...What is the best way in which to obtain ...representation for [the employer].
Second, there are those clients for whom I have some matter[s] pending. Can I [ethically] withdraw from that employment ...in order to undertake the representation of that client's employer, even though I would not represent the employer in any matter concerning that client? Is there any problem with my referring that client to an attorney... May I reasonably request a fee for that portion of the services rendered in the active matter and earned prior to the date on which alternative counsel is retained?
In regard to your first scenario, we believe that you may not represent a client against a former client in a matter substantially related to the former representation. See, e.g., Wolfram, Modern Legal Ethics, 336 (1986). Your duty of loyalty and confidentiality owed to the former client survives the formal conclusion of the lawyer-client relationship. ABA Committee on Ethics and Professional Responsibility, Informal Op. 1322 (1975). Your ethical duty not to disclose confidences is necessary in order to encourage clients to disclose their problems freely and in depth with you, without fear that one day that information may be used against them. Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 570-571 (2d Cir. 1973).
The best way in which to obtain representation for the employer when you are disqualified from the representation is to leave that decision up to the employer. You may, however, recommend another lawyer to your client but again, the employer should have the ultimate control over who is hired. Your responsibility is to avoid the appearance of impropriety by not being involved in an action against a former client that is substantially related to the former representation. See, e.g., Schloetter, v. Railoc of Indiana, Inc., 546 F.2d 706 (7th Cir. 1976).
In regard to withdrawing from employment, DR 2-110(A) states:
(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.
(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.
Disciplinary Rule 2-110(C) which relates to permissive withdrawal states that a lawyer may not withdraw unless one of the reasons set forth in the Rule is met. Withdrawal is permissive if the client knowingly and freely assents to termination of your employment. Code of Professional Responsibility, DR 2-110(C)(5). Therefore, "the Code does not allow a withdrawal without [the client] consent even if withdrawal would not harm an interest of the client." Wolfram, Modern Legal Ethics 551 (1986). Therefore, whether you may withdraw depends upon whether your clients consent to the withdrawal.
In addition, the requirements of the Disciplinary Rules, Ethical Consideration 2-31 states that a lawyer's decision to withdraw should be made only on the basis of compelling circumstances. Furthermore, "[a]n attorney who is retained generally to conduct a legal proceeding enters into an entire contract and should not abandon performance without reasonable cause." Goldsmith v. Pyramid Communication, Inc., 362 F.Supp. 694, 696 (S.D.N.Y. 1973).
We are not going to define what would constitute compelling circumstances; instead we leave that up to the professional judgment of the individual lawyer. However, if you are justified in withdrawing, then you should endeavor to minimize the possible adverse effect on the rights of your clients. Code of Professional Responsibility, EC 2-31.
You may ethically suggest employment of other counsel to your former clients. Id. In addition, you are entitled to your legal fees in proportion to the services performed and responsibility assumed while representing the former client. Code of Professional Responsibility, DR 2-107(A)(2). You should, however, endeavor to avoid any controversies over your fees with your clients and should attempt to resolve amicably any differences on the subject. Code of Professional Responsibility, EC 2-22.
In conclusion, it is our opinion and you are so advised that, an attorney may withdraw from employment only on the basis of compelling circumstances. The client must consent to the withdrawal. A lawyer may also be required by local rule to obtain permission from the tribunal before withdrawing from employment in a proceeding before that tribunal. A lawyer who is justified in withdrawing from employment must take considerable care and endeavor to minimize the possible adverse effect on the rights of his client and the possibility of prejudice to his client as a result of his withdrawal. A lawyer should give due notice to his client that he is withdrawing to allow time for employment of other counsel and may suggest such counsel. A lawyer may not represent a party in an action against a former client in a matter that is substantially related to the former representation. A lawyer is entitled to his or her legal fees in proportion to the services performed and responsibility assumed in the representation prior to the withdrawal.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.
James W. Mason, Esq.
Secretary, Board of Commissioners