Opinion
February 16, 1968
White Case for plaintiffs.
Koffler, Flower Plotka, withdrawing counsel for plaintiffs.
Motion for leave to withdraw as counsel for plaintiffs and to have a lien fixed for the amount of fees allegedly due for legal services rendered.
This motion was originally granted on default. Plaintiffs' default was vacated and a hearing was held before this court.
Movants contend that they were justified in withdrawing as counsel and are entitled to be compensated for the services allegedly rendered to plaintiffs.
Plaintiffs maintain that movants are not entitled to any compensation as the withdrawal was without good and sufficient cause. They argue that this is especially true since the withdrawal came during the time plaintiffs were faced with a motion for summary judgment brought on by defendants.
There are two issues to be decided by the court:
1. Are the movants entitled to compensation for their alleged services rendered?
2. If so, then what compensation are they entitled to?
It is elementary that there must be "mutuality" in order for a contract to be valid. The relationship between an attorney and client is a contractual one. However, there is an exception to this rule of "mutuality" in the case of an attorney and his client. A client may discharge an attorney, with or without cause, at any time ( Matter of Krooks, 257 N.Y. 329). Yet an attorney who withdraws voluntarily, without cause, forfeits his lien for compensation ( Halbert v. Gibbs, 16 App. Div. 126).
Why should an attorney's obligation be so exacting? What makes an attorney so different?
The court in the case in Eisenberg v. Brand ( 144 Misc. 878, 879) answered these questions: "The office of a lawyer is one of great importance. He is schooled in the substantive law, has studied the intricate rules of practice, and is familiar with the pitfalls made in this complex world for the uninitiated. He has the power of expression and is skilled in argument. The road he travels is technical, but he knows the turns — others get lost. * * * The profession demands of him that he stand by under the most trying conditions — lest, unprotected, his client fall down harder than justice requires. * * * he should not desert in the midst of the battle. The relation of attorney and client is a sacred one, and it binds the lawyer, although not the client, to continue to represent him until he is properly relieved."
Accordingly, where an attorney withdraws without good and sufficient cause, his lien is automatically forfeited ( Isser v. Berg, 38 Misc.2d 957). The language of the court in the Eisenberg case ( supra p. 879) sets forth this principle clearly: "It is clear that an attorney cannot leave his client in the middle of a matter, because he does not supply him with money, or by reason of any other difficulty, without running the risk of losing the benefit of that relation. * * * The relation of attorney and client lacks mutuality. It favors the client. He may leave at any time without penalty. The attorney has a right to quit, too (although honor bound to stay), but he is severely penalized. When he withdraws, he breaks the charm that sustains his lien. He himself has destroyed the relationship necessary to support that equitable right that ensured payment of his fee."
Conversely, withdrawal is not fatal to an attorney's lien where there is good and sufficient cause for withdrawal. Canon 44 of the Canons of Professional Ethics provides, in part: "The right of an attorney or counsel to withdraw from employment, once assumed, arises only from good cause. Even the desire or consent of the client is not always sufficient. The lawyer should not throw up the unfinished task to the detriment of his client, except for reasons of honor or self-respect. If the client insists upon an unjust or immoral course in the conduct of his case, or if he persists over the attorney's remonstrance in presenting frivolous defenses, or if he deliberately disregards an agreement or obligation as to fees or expenses, the lawyer may be warranted in withdrawing on due notice to the client, allowing him time to employ another lawyer. So also when a lawyer discovers that his client has no case and the client is determined to continue it; or even if the lawyer finds himself incapable of conducting the case effectively."
Did the movants have just cause for their withdrawal?
There is no claim by movants that plaintiffs have insisted upon an "unjust or immoral course in the conduct of [their] case" or anything else which caused movants to "throw up the unfinished task * * * for reasons of honor or self-respect."
What, then were the reasons given for movants' withdrawal?
Movants assert that there were accusations made by plaintiffs that "counsel lacked good faith". The plaintiffs denied these accusations.
It is interesting to note that the alleged accusations were not cited as a reason for movants' withdrawal at the time of such withdrawal. Furthermore, movants continued to represent the plaintiffs at least a year after these accusations were allegedly made and plaintiffs continued to allow movants to represent them after the alleged accusations occurred.
Should not movants, if these accusations were seriously made, have withdrawn immediately?
The movants, by not acting swiftly, and waiting for at least a year, have waived any objection that the alleged accusations were just cause for withdrawal. The movants' lack of action indicated that they did not consider these alleged accusations seriously.
Movants contend that plaintiffs "brought other counsel into the case over their objections and they were justified in withdrawing".
Movants maintain that the law firm of White Case interfered with their handling of the above-entitled matter by prosecuting a related but independent action which movants refused to undertake. The commencement of the independent action and the alleged interference by White Case occurred in the Spring of 1966. The independent action was discontinued in the Fall of 1966. However, the movants' withdrawal came a year after White Case instituted the independent action.
Did it take a year for movants to learn that the institution of the independent action by White Case was interfering with their handling of the instant action? Why did not the movants notify plaintiffs that the institution of this independent action would cause them to consider withdrawal?
The court agrees with movants' statement that an attorney has good cause for withdrawal "where the client insists upon introducing into a case a counsel who is professionally or personally objectionable to the attorney retained therein" ( Tenney v. Berger, 93 N.Y. 524). However, movants have never stated that the firm of White Case was professionally or personally objectionable to them. Furthermore, in the case of Tenney v. Berger ( supra), relied upon by the movants, the objected-to co-counsel had actually been employed by the plaintiff in the very same action that plaintiff's attorney was handling and plaintiff's attorney immediately objected and withdrew.
There is no evidence, in the instant action, that White Case was employed by plaintiffs (except in the independent action) prior to movants' withdrawal. Furthermore, such withdrawal occurred almost a year after movants claimed White Case participated in an objectionable manner in instituting the independent action and more than six months after the prosecution of the independent action had ceased.
The movants also advance the ground that the plaintiffs refused to "discuss" an offered settlement and therefore they were justified in withdrawing.
The plaintiffs informed the movants that the offered settlement was not acceptable to them under any circumstances. What good would further discussions serve?
It is the client who controls the decision as to whether a settlement offer is to be accepted. The plaintiffs made that decision. This decision is binding upon the attorney even though not in accordance with his advice.
Certainly, a refusal to accept a settlement, even though favored by an attorney, is not cause for a withdrawal by the attorney ( Mrozinski v. Marinello, 46 Misc.2d 637).
Even if the court were to concede, for the sake of argument, that the alleged reasons cited by movants would under normal circumstances furnish good and sufficient cause for movants' withdrawal, they do not justify movants' abandonment of plaintiffs in the face of a critical summary judgment motion. The movants were attorneys of record for plaintiffs for three years and were the only ones fully familiar with the facts and law regarding the summary judgment. The movants owed the plaintiffs the duty to represent them at least until the final decision of the critical summary judgment motion. Thus in Eisenberg v. Brand ( 144 Misc. 878, 879 supra), the court, in considering whether the withdrawing attorney was entitled to a lien, stated: "In this instance, this attorney cannot be accused of deserting or in any way abandoning his client. There was no emergency at the time he wrote the letter [requesting substitution of attorneys]."
The court is loathe to deny an attorney compensation for services performed. However, the court also recognizes that he is aware of his obligation and duties to a client.
This awareness takes place from the moment he is a neophyte in the study of law. In law school he is made cognizant of the difficulties of the legal profession and the obligations and duties which will be expected of him by a client.
He is given the choice of assuming these obligations. His admission to the Bar is a clear indication that he has chosen to fulfill these obligations.
He again reaffirms his intention to be bound by these obligations and advertises this fact to the world when he hangs out his shingle.
The law recognizes that these obligations to a client are difficult and severe. Therefore these obligations are only imposed once an attorney decides to acquiesce in the establishment of the attorney-client relationship as evidenced by a retainer agreement, whether oral or written.
Now the attorney cannot turn back. He is duty bound to represent the client to the best of his ability. He cannot voluntarily withdraw without just cause. If he does so, then he must pay the penalty — forfeiture of his compensation.
The mere fact that the retainer is not as profitable as first imagined is no excuse for withdrawal. Neither is a rationalization of various events, none of which seemed important to the movants at the time, justification for withdrawal under the facts presented herein.
Movants' motion for compensation is accordingly denied.