Most jurisdictions allow a lawyer to withdraw from representing a client 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” or if “the representation will result in an unreasonable financial burden on the lawyer.” (e.g., Georgia Rule 1.16(b)). This includes a client’s refusal “to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs.”
If you are going to withdrawal for nonpayment of fees, do not wait too long. Many courts will refuse to let an attorney out of a case (even for nonpayment) without replacement counsel lined up, because such withdrawal will likely delay resolution of the case.
How to do it
Provide written notice to client that failure to pay will force withdrawal and give client opportunity to pay.
If time has passed and payment not made, provide client written notice of intent to withdrawal. In that notice, explain the implications for the client, give the client a reasonable amount of time to find replacement counsel or otherwise prepare for withdrawal, and notify the client of the status of matter with any upcoming deadlines. Make sure to follow the withdrawal rules of any particular forum in which a formal appearance has been made.
If a motion to withdraw is filed, care must be taken as to what information is disclosed. Lawyer’s have a duty to keep client information confidential. The safest course is not to include the nonpayment details in the motion. The ABA has issued a formal ethics opinion holding that, at least in some situations, if a court seeks additional information in support of a motion to withdraw for failure to pay fees, a lawyer may “disclose information regarding the representation of the client that is limited to the extent reasonably necessary to respond to the court’s inquiry and in support of that motion to withdraw.” (ABA Op 476). Consider an in camera submission.
Between the time notice of withdrawal is provided to the client and actual withdrawal, an attorney must continue representing the client and make efforts to reduce any harm to the client. For example, obtain deadline extensions to allow client’s replacement counsel time to properly act.
If a client or replacement counsel demand the file, an attorney usually must hand it over. There may be a temptation to withhold the file until payment has been made by the client, but this approach is generally not allowed if it will prejudice the client. (e.g., Georgia)