Can an Oregon lawyer stop working on a client's lawsuit until the client pays overdue legal fees?

Plain-English summary

A lawyer agreed to represent a client in litigation on an hourly basis and, after appearing for the client, became concerned the client was falling behind on the agreed payments. The opinion addresses whether the lawyer may refuse to proceed unless and until the client pays all past-due amounts.

The opinion concludes the answer is no, qualified. While Oregon RPC 1.16(b) lets a lawyer withdraw when the client fails substantially to fulfill a fee obligation after reasonable warning, or when the representation would impose an unreasonable financial burden, that right is limited by RPC 1.16(c). In litigation, the lawyer must comply with the law requiring notice to or permission of the tribunal, and when ordered to continue must do so notwithstanding good cause to withdraw.

The opinion applies these rules as follows: the lawyer may, if consistent with applicable law, seek leave of the court to withdraw, must give the client reasonable notice under RPC 1.16(b)(5), and must take the steps required by RPC 1.16(d) to avoid prejudice to the client. If the court refuses to permit withdrawal, the lawyer must continue with the matter and provide competent representation under RPC 1.1 despite the nonpayment.

In practice

Under this opinion, as the Oregon rules stood when it issued, nonpayment of fees is potential good cause to withdraw from litigation but does not by itself let the lawyer stop work. The opinion holds that the lawyer must route a fee-based withdrawal through the tribunal under RPC 1.16(c), and that a court order to continue overrides the lawyer's good cause to leave.

Common questions

Q: Can an Oregon lawyer quit a case just because the client owes fees?

A: Not on the lawyer's own authority in litigation. The opinion concludes the lawyer must seek the court's leave to withdraw and comply with any applicable notice or permission requirement under RPC 1.16(c).

Q: What must the lawyer do before withdrawing for nonpayment?

A: The opinion concludes the lawyer must give the client reasonable warning and notice under RPC 1.16(b)(5) and take the steps in RPC 1.16(d) to protect the client's interests, such as allowing time to find new counsel and surrendering papers and any unearned fees.

Q: What if the court refuses to let the lawyer withdraw?

A: The opinion concludes the lawyer must continue with the matter and provide competent representation under RPC 1.1 notwithstanding the nonpayment.

Background and rules framework

The opinion interprets Oregon RPC 1.16 (declining or terminating representation), read with RPC 1.1 (competence) and RPC 1.3 (diligence). These track Model Rules 1.16, 1.1, and 1.3. The opinion also references the law governing court permission to withdraw, citing ORS 9.380, UTCR 3.140, and LR 83-11.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.16 / Model Rule 1.16 (declining or terminating representation)
• Oregon RPC 1.1 / Model Rule 1.1 (competence)
• Oregon RPC 1.3 / Model Rule 1.3 (diligence)

Statutes and rules:

• ORS 9.380; UTCR 3.140; LR 83-11 (court permission to withdraw)

Cases:

• In re Martin, 328 Or 177, 970 P2d 638 (1998)
• In re Thomsen, 262 Or 496, 499 P2d 815 (1972)
• In re Lathen, 294 Or 157, 654 P2d 1110 (1982)

See also

• ABA Formal Op. 476: Confidentiality When Withdrawing for Nonpayment
• ABA Formal Op. 92-366: Noisy Withdrawal to Avoid Assisting Fraud

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-1.pdf