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CSA allows attorney to withdraw from civil case

An attorney may withdraw from an ongoing civil suit if a client has declined to pay the legal fee, a Maryland appeals court held.

The decision by the Court of Special Appeals overturned a trial judge’s order that blocked a lawyer from pulling out of a case because his client allegedly owes him more than $120,000.

The trial judge had also refused to let attorney Frederick R. Franke Jr. appeal the order while the underlying civil action against his client, Dr. Raymon K. Nelson, was pending. The Court of Special Appeals, however, said that forcing a lawyer to wait until the litigation ended would render a withdrawal bid moot.

“There is no constitutional or statutory right to free counsel in a civil case such as this, and [Nelson] must bear the consequences of his failure to pay existing attorney fees and his acknowledged inability to pay those likely to be incurred by the trial of this case,” Chief Judge Peter B. Krauser wrote for the 3-0 panel.

“On the other hand, the circuit court’s order, effectively compelling Franke to continue representing [Nelson], without reasonable likelihood of compensation, imposed an unreasonable financial burden on him,” Krauser added. “Thus, there would be no injustice to [Nelson] if the motion to withdraw were granted, but there would be to Franke if that motion were denied.”

Nelson, a Hyattsville cardiologist, represented himself before the Court of Special Appeals and argued unsuccessfully in defense of the judge’s order.

“I can’t walk out on a patient who is bleeding,” Nelson said in an interview on Thursday. “I am left bleeding on the table.”

Nelson said he has not decided if he will ask the Court of Appeals to hear the matter.

If he chooses to forgo an appeal, Nelson said it would not be because he is too nervous to appear before the high court, citing his experience in treating critically ill people with damaged hearts.

“Equanimity under duress,” the doctor said. “That’s how I’ve been trained.”

Franke, an Annapolis solo practitioner when he asked to withdraw, welcomed the Court of Special Appeals’ holding and said his withdrawal from the case was difficult but financially necessary.

“I would have preferred having been paid and not making any law except on behalf of my client,” said Franke, who has since taken on an associate. “You don’t want to do this, but if [clients] don’t meet their obligations, sometimes you have to do it.”

Trust dispute

When he retained Franke in summer 2008, Nelson was facing a legal challenge from his late brother’s widow to have him removed as the trustee of a $1.6 million trust for alleged misappropriation. Nelson paid Franke a $10,000 retainer and additional fees of $24,000 and then reimbursed himself from the trust that his brother, Ralph Sr., had set up in his dying days in 2004 for his wife, Myra, and son, Ralph Jr., according to Krauser’s opinion.

Myra’s bid to have Nelson removed ultimately succeeded. Anne Arundel County Circuit Judge Pamela L. North appointed the widow’s cousin as interim trustee and scheduled a trial on the misappropriation claim for February 2010.

In December 2009, Franke sent Nelson a letter notifying the client of his intent to file a motion to withdraw from the case. Thirteen days later, Franke filed his motion to withdraw.

In that motion, Franke stated he was owed more than $120,000 in fees and listed the services he had provided, which included overseeing the turnover of trustee responsibilities and attempting to settle the dispute. Franke added he had continued to represent Nelson during discovery to prevent any “potential prejudice” to Nelson.

Nelson opposed the motion, saying that, with the trial five weeks away, he “would likely sustain irreparable harm and an unfair trial if counsel were to withdraw.”

North denied Franke’s motion without elaboration; however, she granted Franke’s motion to stay legal proceedings pending his appeal.

In holding for Franke, the Court of Special Appeals said he complied with Maryland Rule of Professional Conduct 1.16, which permits attorneys to withdraw from a civil case if the client has failed “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] the representation will result in an unreasonable burden on the lawyer or has been rendered unreasonably difficult by the client.”

The rules only require lawyers to give clients five days’ notice of their intent to withdraw; Franke gave Nelson 13 days’ notice, the court held.

Franke “was not retained on a contingent fee basis or on the assumption that he would be paid from the trust’s assets,” Krauser wrote. “Having no reasonable prospect of receiving any of the more than $120,000 owed him, Franke faces, unless given the opportunity to withdraw, further expenditures of time and resources on [Nelson’s] behalf, as significant proceedings lie ahead, notably [Nelson’s] trial. Thus, Franke, who is a solo practitioner, finds himself confronted with an ‘unreasonable financial burden.’”

Nelson had also argued that Franke’s appeal must await a final judgment in the misappropriation suit. The appellate court rejected that notion.

“Indeed, were we to rule otherwise, we would effectively deny the bar any means for seeking the reversal of what may prove to be an erroneous and extremely burdensome ruling, because to defer an appellate challenge to such a ruling until the final judgment essentially renders it moot on arrival,” Krauser wrote.

Franke agreed.

“From the lawyer’s standpoint, there is no remedy at the end of a case,” Franke said. “”You would have expended all that energy and time out of pocket.”

Nelson, the doctor, acknowledged that making legal arguments is “out of my field of expertise, [but] I felt like I did a pretty good job even though I didn’t win.”

WHAT THE COURT HELD

Case:

In the Matter of the Motion of Frederick R. Franke Jr. to Withdraw Representation, CSA No. 2577, Sept. Term 2009. Reported. Opinion by Krauser, C.J. Argued April 11, 2011. Filed Aug. 29, 2012.

Issue:

May an attorney file an interlocutory appeal when his motion to withdraw as counsel has been denied? May an attorney move to withdraw as counsel in a civil suit if a client has not paid his fee?

Holding:

Yes and yes: Requiring an attorney to await final judgment would render his motion to withdraw moot, and “there is no constitutional or statutory right to free counsel in a civil case.”

Counsel:

Frederick R. Franke Jr. for appellant; Raymon K. Nelson for appellee.

RecordFax # 12-0829-03 (21 pages).