May a lawyer withdraw when the client will not pay, and may the lawyer tell the judge at the withdrawal hearing that he believes the case may be frivolous?

Plain-English summary

An attorney took over a lawsuit (for fraud, accounting, and money due, triable to the court) that another lawyer had filed, and asked two questions: whether he could withdraw when the client refused to pay for services, and whether at the hearing on the motion to withdraw he could tell the judge that one reason for withdrawal was his belief that the case might be frivolous.

On withdrawal, the committee pointed to Rule 16-116(B)(4), which permits a lawyer to withdraw when the client fails substantially to fulfill an obligation regarding the lawyer's services after reasonable warning that the lawyer will withdraw. The committee found the rule straightforward and said it could not determine whether the client's failure to pay was "substantial"; the attorney should make that determination and ensure reasonable warning was given.

On disclosing a frivolousness concern, the committee reasoned the question should not have to arise because withdrawal should be available under Rule 16-116(B)(4), and that the confrontation might be avoided by conveying the misgivings to the client so the client could discharge the lawyer (relating the analysis to Advisory Opinion 1986-10, while noting this case did not appear to present a likelihood of participating in a fraud on the court). If the client maintained the suit was meritorious and would not discharge the lawyer, the lawyer would face a conflict between the duty not to prejudice a meritorious cause and the duty not to pursue frivolous litigation. The committee suggested separating the withdrawal issue from the merits, by asking that a different judge hear the motion or that the judge recuse if he heard it himself, on the basis that the lawyer could not disclose his reason without risking prejudice to the client. The committee added that both problems might have been avoided had the attorney investigated the claims thoroughly before agreeing to pursue them, citing the duty not to undertake frivolous litigation (EC 7-4, Rule 16-301, and Rule 11 of the New Mexico Rules of Civil Procedure).

Currency note

This opinion was issued in 1987, under the New Mexico Rules of Professional Conduct effective January 1, 1987 (Rules 16-116 and 16-301). It predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). 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 because the client will not pay?

A: The opinion concluded a lawyer may seek permissive withdrawal under Rule 16-116(B)(4) when the client fails substantially to meet an obligation regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw.

Q: Who decides whether the nonpayment is "substantial"?

A: The committee concluded it could not make that determination; the attorney must decide whether the failure to pay is substantial and ensure reasonable warning of withdrawal is given to the client.

Q: Should the lawyer tell the judge he thinks the case is frivolous?

A: The committee concluded the lawyer should avoid creating that confrontation, and where the conflict is unavoidable, should separate the withdrawal question from the merits, for example by asking that a different judge hear the motion or that the judge recuse, so disclosing the reason does not prejudice the client.

Q: How could the dilemma have been prevented?

A: The committee noted both problems might have been avoided had the attorney investigated the claims thoroughly before agreeing to pursue them, citing the duty not to undertake frivolous litigation.

Background and rules framework

The opinion applied the Rules of Professional Conduct effective January 1, 1987: Rule 16-116(B)(4) (permissive withdrawal for substantial failure to meet an obligation after reasonable warning) and Rule 16-301 (meritorious claims and contentions), alongside EC 7-4 and Rule 11 of the New Mexico Rules of Civil Procedure. These correspond to current Model Rules 1.16 (declining or terminating representation), 3.1 (meritorious claims and contentions), and the confidentiality concerns of Rule 1.6.

Citations and references

Rules of Professional Conduct:

• Rule 16-116(B)(4) (permissive withdrawal for substantial failure to fulfill an obligation after reasonable warning)
• Rule 16-301 (meritorious claims and contentions); EC 7-4

Other authority:

• Rule 11, New Mexico Rules of Civil Procedure (duty to investigate before pursuing claims)

Other opinions cited:

• NM Advisory Opinion 1986-10 (related considerations on withdrawal and fraud on the court)

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1987/1987-9.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion 1987-9
Factual Situation:
An attorney, having taken over the prosecution of a lawsuit initially filed by another attorney, wishes to know whether he may withdraw from representation when the client refuses to pay for legal services rendered. The attorney also wishes to know whether he may advise the judge, at the hearing on the motion to withdraw, that one of the reasons for withdrawal is that he believes the case may be frivolous. The underlying case is for fraud, accounting, and money due, and would therefore be tried to the court rather than to a jury.
Opinion:
The first issue, that of permissive withdrawal, is the subject of Rule 16-116 of the Rules of Professional Conduct. That Rule provides that a lawyer may withdraw if "the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled." (Rule 16-116(B)(4)). The Rule is straightforward and requires no further elaboration. The Committee is not in a position to determine if the client's failure to pay for services is "substantial." The attorney should make that determination and assure that reasonable warning of withdrawal is given to the client.
The second issue, whether the attorney may advise the court at the hearing on the motion to withdraw that he thinks the case may be without merit, should not have to arise since the attorney should be allowed to withdraw under Rule 16-116(B)(4). If the issue does arise, it may perhaps be best resolved by preventing the confrontation. The attorney might simply convey his misgivings to the client and thereby allow the client the opportunity to discharge him. In this regard, the considerations addressed in Advisory opinion No. 1986-10 are related, although the present case does not appear to present a likelihood that the attorney will be participating in a fraud upon the court if he does not withdraw.
If the client steadfastly maintains that his suit is meritorius and will not discharge the attorney, then the attorney is confronted with the conflict between his duty not to prejudice the client's cause if it is in fact meritorius and his duty to the court not to pursue frivolous litigation. The conflict can be avoided if the judge will accept as a reason for withdrawal the simple assertion that there has been an irretrievable breakdown in communication between the attorney and the client. The conflict is inevitable if the judge demands to be informed of the details of the disagreement with the client.
The committee has been unable to find authoritative pronouncements about the proper course of conduct under these circumstances, but the nature of the dilemma suggests that the best resolution would be to separate the issue of withdrawal from the issue of the merits of the case. This could be accomplished in one of two ways. First, the attorney might ask the judge to allow a different judge to hear the motion to withdraw. Second, the attorney could ask the judge to recuse himself from the case if he decides to hear the withdrawal motion himself. The basis for this request is that the attorney cannot disclose his reason for requesting to withdraw without risking prejudice to the client's case.
The committee wishes to point out that both of the problems in this case might have been avoided if the attorney had given more thought to the case before agreeing to represent the client. Because an attorney has a duty not to undertake frivolous litigation, EC 7-4, Rule 16-301 (Rules of Professional Conduct), Rule 11 (New Mexico Rules of Civil Procedure), an attorney should investigate claims thoroughly enough to determine whether they lack merit before agreeing to pursue them.