Commentary: Withdrawals on the eve of trial – Perils for the attorney

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It is a civil trial lawyer’s nightmare. A day certain order is outstanding, less than 10 days away. The witnesses have been identified and prepared.

But, the all-important “Mr. Green” is MIA. 

The retainer is gone: the bills weighty. The client’s repeated promises of payment are unfulfilled.

The attorney turns to his only option: a motion to withdraw as counsel, citing non-payment of fees and the often muddled allegation of “breakdown of client communications.”

The New York courts have long debated attorney motions to withdraw, especially motions on the “eve of trial.” 

How long? 

About a century. 

In 1912, the Court of Appeals, in a 4-3 decision, held that an attorney can withdraw “for a good and sufficient cause and upon reasonable notice,” In re Dunn, 205 N.Y. 398 (1912). The majority permitted withdrawal, while preserving the all-important charging lien, which is evidence that even in 1912, the courts recognized an attorney’s need for the ubiquitous “Mr. Green.”

The rule espoused in In re Dunn deserves the distinction of being considered “well-established”: Between the time the case was argued in the Court of Appeals and the decision was rendered, RMS Titanic sank in the North Atlantic.

Despite the century-long interlude, the ruling in Dunn has remained unquestionably afloat, bobbing amid the rules created by an armada of court opinions and the Civil Practice Law and Rules, which sets forth the procedural requirements for motion practice to withdraw, CPLR 321(b)(2).

Simply put, withdrawal anytime requires “good and sufficient cause” and “reasonable notice” while leaving the decision ultimately to “judicial discretion.” 

If the first two factors are present, why invoke judicial discretion at all? A client, after all, can dismiss her lawyer virtually anytime and for any reason. The answer is the fiduciary duty owed to the client and the client’s justified reliance. An attorney “does not have an unfettered right to unilaterally withdraw,” Benefield v. City of New York, 14 Misc 3d 603,606 (Sup. Ct. Bronx Cty 2006).

Is “non-payment of fees” enough to get you out? Don’t count on it, even though the Code of Professional Responsibility (CPR) says it is justified, CPR 2-110(C)(1)(f); Kay v. Kay, 245 A.D. 2d 549 (4th Dept. 1997). Most courts, invoking their discretion on the eve of trial, say “the fact that a client fails to pay an attorney for services rendered does not, without more, entitle the attorney to withdraw,” George v. George, 217 A.D. 2d 913 (4th Dept. 1995).

What is the “more” that the courts require? The code says conduct that renders it “unreasonably difficult” for the lawyer to carry out her duties is what is required, Code of Professional Responsibility, 2-110(C)(1)(d).

The “irretrievably broken down” relationship can qualify. If the client does not respond to phone calls, letters or document requests for two year and stops paying its bills, then withdrawal is granted, Vargas v. Go W. Entertainment, Inc., 28 Misc. 3d 1223A (2010).

Similarly, if your client refuses to cooperate in their own defense, a primary witness is prevented from testifying, vital documents are withheld and the client yells “get the hell out of my office,” the court, using its ample discretion, will likely grant withdrawal, Dillon v. Otis Elevator Co., 22 A.D. 3d 1 (1st Dept. 2005). If the client’s son acts “like a back seat driver,” withdrawal is warranted, Joseph Brenner Assoc. V. Starmaker Enterm’t Inc., 82 F. 3d 55 (2d Cir. 1966). Even less dramatic client conduct — a Cool Hand Luke-like “simple failure to communicate” — can justify withdrawal, Bok v. Werner, 9 A.D. 3d 318 (1st Dept. 2004).

But, vague accounts of attorney-client discord — “the client failed to follow directions” — generally won’t earn withdrawal, Kaufman v. Kaufman, 63 A.D. 3d 618 (1st Dept. 2009); Isser v. Berg, 38 Misc. 2d 957 (1963). Courts want specific facts and details.

One justification won’t ever get by the courts. The fact that the case is a clunker — or as the courts say of “questionable liability and limited damages” — will never justify a tardy application to withdraw, Benefield v. New York City, 14 Misc 3d at 606. Turning down a settlement offer — no matter how reasonable — may not qualify either, Welch v. Niagara Falls Gazette, 2000 U.S. Dist. LEXIS 16982 (WDNY 2000)

Do not forget that “good cause” is only half the withdrawing lawyer’s battle. Reasonable notice — to the client and the court — is equally important. The code requires “due notice to the client,” CPR 2-110(A)(2). Often, the courts set the terms of the “reasonable notice” to the client, especially when the client can not be found, see Matter of Hohenforst v. DeMagistris, 44 A.D. 3d 1114 (3rd Dept. 2007); Williams v. Lewis, 258 A.D. 2d 974 (4th Dept. 1999).

But, lack of adequate notice to the trial-prepared court most often results in denial because discretion — i.e., the court’s need to achieve calendar control — intervenes, Torres v. Torres, 169 A.D. 2d 829 (2d Dept. 1991)(withdrawal denied because court concluded client was trying to manipulate scheduling). In Haskell v. Haskell, 185 A.D. 2d 333 (2d Dept. 1992), the court rejected withdrawal for non-payment because the case had been pending for seven years and further delay would be inequitable.

In one area that should concern matrimonial practitioners, a court has suggested it would not permit withdrawal based on lack of payment of fees, unless counsel has applied for temporary fees from the opposing party and been denied those fees, Kay v. Kay, 245 A.D. 2d 549 (4th Dept. 1997); see generally J.H.W. v. J.M.W., 235 NYLJ 28 (Sup. Ct. New York Cty 2006); Klein v. Klein, 6 Misc 3d 1009A (Sup. Ct. Nassau Cty 2005).

If the divorce attorney can get fees from the opposing party, the courts may require counsel to exhaust that remedy before permitting withdrawal for non-payment and, if moving for withdrawal prior to the trial, the attorney should renew a request for interim fees as an alternative. 

A rule of thumb: The closer to trial and hence, less notice to the court and client, the more likely that the application will need not just “good cause” but “more and better cause.” On the eve of trial, Mr. Green’s absence, alone, won’t be enough.

The Hon. Richard A. Dollinger is an acting supreme court judge. Mariangela Sullivan is a 2011 graduate of Notre Dame Law School and a fellow in public service law.