ETHICS OPINION 542-1965 WITHDRAWAL

NUMBER 542

QUESTION

 

Attorney was retained on a contingency basis to represent a client in a proposed malpractice action.

 

After due consideration, client was advised that the case was a most difficult one but that there appeared to be merit in the client’s contention, and hence action was instituted. In the course of the action, it was ascertained that the defendant therein was uninsured.

 

This additional circumstance, coupled with the initial difficulty of the case, makes it both impractical and undesirable to continue with the litigation.

 

May the attorney, with propriety, withdraw from such action, without making a motion for permission to withdraw, which, of course, would tend to embarrass the plaintiff and to prejudice her action in the event plaintiff determined to continue with other counsel?

 

ANSWER.

 

Canon 44 provides that “The right of an attorney or counsel to withdraw from employment, once assumed, arises only from good cause,” Apparently the attorney here did not expressly condition his undertaking to represent the plaintiff upon subsequent verification of his supposition that the defendant was insured. It is the opinion of the Committee that the attorney has no absolute right to be relieved of an employment, unconditionally assumed on a contingent fee basis, merely because the defendant’s ability to respond to judgment has become less certain or an unknown quantity. Accordingly, if his client does not consent to his retirement, or to the dismissal or discontinuance of the action, the attorney may not with propriety withdraw from the action under the circumstances described without making appropriate application to the court. Moreover, he may properly make such application only if this can be done in such manner as not to prejudice in any material respect the plaintiff’s cause. See our Opinion 110; also Opinion 221, Committee on Professional Ethics, The Association of the Bar of the City of New York.

 

Dated: July 27, 1965