Just like in many other industries, lawyers often need to contend with performing services and not getting paid for their work. Of course, this is separate and apart from worthwhile pro bono services for which lawyers agree to forgo payment in order to perform work for clients who may not be able to afford their services. As many attorneys should know from firsthand experience, lawyers and clients often agree to compensation terms, but clients may not live up to those expectations. Since lawyers who make an appearance in litigation often need court approval to withdraw, even if they are not getting paid, some unpaid lawyers can find themselves with substantial ethical and financial responsibilities even if they have not been paid. For a variety of reasons, lawyers and courts should have more sympathy for lawyers who are not being paid by clients.
Throughout my career, I have seen numerous lawyers file motions to be relieved as counsel because they are not getting paid. In many situations, other lawyers involved in a matter do not oppose such motions since the fact that a lawyer is not getting paid and wants to withdraw does not really impact a case. In addition, many lawyers think that they would have an easier time litigating a case against a party that does not have legal training.
Every so often, a lawyer files opposition to an adversary’s motion to be relieved as counsel. Sometimes, a lawyer might think that it will be easier to prosecute a case with a lawyer involved on the other side than dealing with parties themselves. Other times, lawyers might have animosity toward withdrawing counsel and seemingly oppose the motion to be relieved as counsel out of this hostility.
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However, lawyers should put themselves in the shoes of withdrawing counsel and ask themselves how they would feel if they faced opposition for trying to withdraw as counsel for insufficient payment. Lawyers should be intimately aware of the challenges all attorneys face in the practice of law, including the ever-present difficulty of getting paid for their work and dealing with the consequences of insufficient payment. This should guide lawyers to not oppose a motion to be relieved as counsel for nonpayment unless it is absolutely necessary.
Judges should also sympathize more with withdrawing counsel. Of course, judges need to balance the interests of withdrawing counsel with the interests of the parties they represent, and sometimes this requires a judge to deny a request to be relieved as counsel. However, almost all judges were practicing attorneys at one point or another. As such, judges should be able to empathize with the challenges that all lawyers face, including getting paid for their work and dealing with the consequences or not getting paid.
Nevertheless, I have seen judges over the years extend not much sympathy toward lawyers who were being asked to be relived as counsel because of insufficient payment. Earlier in my career, I was in court to argue a motion, and I randomly saw a friend of mine with whom I had worked at another firm years ago. While waiting for my motion to be called, I watched my friend argue his motion to be relieved as counsel, which was the second time he had asked to be relieved as counsel for insufficient payment, but the court denied his first motion.
The judge almost seemed giddy about torturing my friend by keeping him in the case, and the judge denied the motion to be relieved as counsel again. The judge explained that the client could be prejudiced by the departure, and granting the motion could delay the case. Although the judge permitted my friend to renew his motion later on, my friend was spending much time on the case without getting paid, and this assuredly impacted his practice. As this example shows, the interests of the lawyer and client alike should be more carefully balanced when deciding whether to grant a motion to be relieved as counsel.
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The judicial system may not be well-served by refusing to permit lawyers to withdraw from cases in which they are not getting paid. If a lawyer thinks that they will have a difficult time withdrawing, they may request a larger advance retainer before taking on a matter to ensure payment. This can lead to access to justice issues since it may be more difficult for some clients to pay larger advance retainers all at once rather than an attorney’s monthly fees over time. In addition, lawyers who are not getting paid may not prioritize that client’s work as much as other matters and this can lead to a less responsive representation. Moreover, if a lawyer is not getting paid, a breakdown in communication between attorney and client could occur, which can be problematic.
All told, lawyers and judges need to balance their own interests, the interests of clients, and the judicial system when deciding how to act on motions to be relieved as counsel for insufficient payment. However, lawyers and judges should sympathize with lawyers who are not getting paid, and should only make it difficult for them to withdraw from a representation in exceptional circumstances.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at [email protected].