If an Oregon lawyer's client disappears mid-appeal owing fees, can the lawyer stop work or settle the case without the client?

Plain-English summary

A lawyer represents a defendant who loses at trial, is directed to file an appeal and does so, and the defendant posts a bond. While the appeal is pending, the defendant leaves the country, owing the lawyer past-due fees and expenses, and the lawyer cannot locate the defendant despite efforts to do so. The opinion asks whether the lawyer may refuse to continue the appeal until the client is heard from, and whether the lawyer may settle the case on terms the lawyer believes favorable.

On the first question the opinion concludes no, qualified. Under RPC 1.1 (competence) and RPC 1.3 (no neglect), and RPC 1.16, a lawyer may withdraw on grounds such as the client's failure to fulfill an obligation regarding fees after reasonable warning, or an unreasonable financial burden. But the opinion concludes that unless the lawyer properly seeks and obtains leave to withdraw under RPC 1.16, the lawyer must continue handling the appeal. Even where grounds to withdraw appear to exist, RPC 1.16(c) still requires the lawyer to give notice to or obtain consent from the court in which the appeal is pending.

On the second question the opinion concludes no, qualified. Because the lawyer is the client's agent and owes the client a fiduciary duty, and citing OSB Formal Op. 2005-26, the opinion concludes the lawyer may not settle the case unless given authority to do so.

In practice

Under the Oregon rules as they stood at the time of the opinion, a missing, fee-owing client did not let the lawyer simply stop work: RPC 1.16 required the lawyer to obtain leave to withdraw, with court notice or consent under RPC 1.16(c). Per the opinion, the lawyer's agency and fiduciary duties also barred settling the case without the client's authority.

Common questions

Q: Can a lawyer stop working on an appeal when the client disappears and owes fees?

A: No, qualified. The opinion concludes the lawyer must keep handling the appeal until properly granted leave to withdraw under RPC 1.16, including court notice or consent under RPC 1.16(c).

Q: Does owing fees give the lawyer grounds to withdraw?

A: It can. The opinion notes RPC 1.16(b) allows withdrawal for failure to meet a fee obligation after reasonable warning or for unreasonable financial burden, but leave still must be obtained.

Q: Can the lawyer accept a favorable settlement on the missing client's behalf?

A: No, qualified. The opinion concludes the lawyer, as the client's agent, may not settle without the client's authority.

Background and rules framework

The opinion interprets Oregon RPC 1.16 (declining or terminating representation, including the permissive-withdrawal grounds in 1.16(b) and the court-notice requirement in 1.16(c)), with RPC 1.1 (competence), RPC 1.3 (diligence), and RPC 1.2(a) (client decisions, including settlement). RPC 1.16 tracks Model Rule 1.16.

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)
• Oregon RPC 1.2(a) / Model Rule 1.2 (client decisions; settlement)

Statutes:

• ORS 9.380 to 9.390 (withdrawal of attorney)

Cases:

• In re Lathen, 294 Or 157, 654 P2d 1110 (1982)
• State v. Balfour, 311 Or 434, 814 P2d 1069 (1991)

See also

• OSB Ethics Op. 2005-1: Withdrawal From Litigation for Unpaid Fees
• OSB Ethics Op. 2005-26: Endorsing a Check on a Client's Behalf

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-33.pdf