If a lawyer is discharged before doing any work, can the lawyer still enforce a retainer agreement and collect the stipulated fee?
Ohio BPC Opinion 88-031: No Fee Where No Services Were Performed
Short answer: The Board concluded that when a lawyer withdraws or is discharged, has collected no fees, and has performed no services, the lawyer is not entitled to the stipulated fee, because a lawyer must refund unearned fees under former DR 2-110(A)(3); with no fee merited, dividing it among partners is moot.
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
This opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 1.5 on fees and 1.16(d) on returning unearned fees) before relying on any specific rule mentioned here.
Plain-English summary
A lawyer asked whether it was ethical to enforce a retainer agreement for payment of future fees for legal services that were no longer desired and would not be performed.
The Board noted that the Disciplinary Rules are mandatory, and that DR 2-110(A)(3) requires a lawyer who withdraws or is discharged to refund any part of a fee paid in advance that has not been earned. It found this supported by EC 2-31 and by Model Rule 1.16(d), which uses nearly identical language (and, though not adopted by Ohio, is persuasive). Reasoning that if a lawyer must refund unearned fees, he also must not collect unearned fees, the Board cited Scheinesohn v. Lemonek for the point that an attorney may recover the value of services contemplated, but where termination meant no work was performed, the attorney is not entitled to a fee. It concluded that a fee of any sort where no services have been performed is unreasonable. On the implied question about dividing such fees among partners, the Board concluded that because no work was done and no fee was or should be collected, division was unnecessary; had a fee been earned and collected, the partnership agreement would seem to control its division.
Common questions
Q: Can a lawyer enforce a retainer for a fee when no work was done?
A: No. The Board concluded that where a lawyer is discharged or withdraws having performed no services and collected no fees, the lawyer is not entitled to the stipulated fee, because unearned fees must be refunded under DR 2-110(A)(3).
Q: Who divides the fee among partners in that situation?
A: No one. The Board concluded that because no fee was or should be collected, division among partners was moot; had a fee been earned, the partnership agreement would seem to control.
Background and rules framework
The opinion applies former DR 2-110(A)(3) (refunding unearned advance fees) and EC 2-31 of the Ohio Code of Professional Responsibility, and treats Model Rule 1.16(d) as persuasive. The current parallels are Ohio Prof. Cond. R. 1.5 (fees) and 1.16(d) (returning unearned fees on termination), with Model Rules 1.5 and 1.16.
Citations and references
Rules of Professional Conduct:
- Former DR 2-110(A)(3), Ohio Code of Professional Responsibility
- Former EC 2-31, Ohio Code of Professional Responsibility
- ABA Model Rule 1.16(d) (cited as persuasive; not adopted in Ohio at the time)
Cases:
- Scheinesohn v. Lemonek, 84 Ohio St. 424, 95 N.E. 913 (1911), recovery limited to the value of services rendered
See also
- Ohio BPC Opinion 1988-024: Withdrawal, Former-Client Conflicts, and Fees Earned Before Withdrawal
- Ohio BPC Opinion 1988-026: Fee Division and "Responsibility Assumed"
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-031.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 88-31
Issued December 16, 1988
[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.]
SYLLABUS: When an attorney withdraws or is discharged from employment, has collected no fees under a retainer agreement, and has provided no services under said agreement, the attorney is not entitled to recover the fee stipulated. If no fee is merited, the question of division of fees amongst partners is moot.
OPINION: We have before us your request for our opinion on whether it is ethical to enforce a retainer agreement for payment of future fees for legal services which are no longer desired and will not be performed.
The Disciplinary Rules of the Code of Professional Responsibility are mandatory in character. They state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. Using those same rules, DR 2-110(A)(3) makes it clear that a lawyer who withdraws, or is discharged from employment is to refund any part of a fee paid in advance that has not been earned.
This is further supported by both Ethical Consideration 2-31 of the Ohio Code of Professional Responsibility, and Model Rule of Professional Conduct 1.16(d). While the Ethical Considerations are not mandatory in character, "they represent the objectives toward which every member of the profession should strive." Code of Professional Responsibility, Preface. The Model Rules, although not adopted by Ohio, have been adopted by a majority of states and are persuasive. In light of the nearly identical language used in Ethical Consideration 2-31 and Model Rules 1.16(d), their combined use adds even greater weight to the mandatory Disciplinary Rules.
If, under those rules, an attorney must refund unearned fees, it is logical to assume that he also must not collect unearned fees. According to Scheinesohn v. Lemonek, 84 Ohio St. 424, 95 N.E. 913 (1911), an attorney may recover the value of services contemplated. However, if, because of termination, no work was actually performed, the attorney is not entitled to a fee based upon whatever benefits the defendant/client might have derived if services had been rendered. This case clearly shows that an attorney is not entitled to unearned fees.
Applying all of these factors to the situation presented, it is clear that a fee of any sort, where no services have been performed is unreasonable.
Finally, your request implied a question on the division of such fees by partners in a law firm. As no work was done and no fee was or should be collected, division of fees by partners in this situation is unnecessary. However, if a fee had been both earned and collected, it would seem that the partnership agreement between the attorneys should control the division of said fees.
This opinion is advisory in nature, is based upon the facts as presented and is limited to questions, arising under the Code of Professional Responsibility.