Opinion 89-22
(October 1989)

You have asked the Professional Guidance Committee for an Opinion in your letter dated June 7, 1989. Your letter asked whether and under what circumstances, you may withdraw from the case outlined below.

The facts of the situation are as follows: You filed suit on behalf of your client against her PIP carrier to recover the unpaid portion of Dr. A's bill for physical therapy treatment received after your client was injured in a car accident. The accident portion of the case has been settled. Prior to the Common Pleas Court arbitration, you received an offer to settle for a sum representing 70% of Dr. A's unpaid bill but Dr. A. refused to accept this sum in full satisfaction of his bill due from your client. The case then went to arbitration and although your client was awarded the full amount of Dr. A's unpaid bill, attorney fees for you were not recovered and more to the point, the defendant insurance carrier appealed the award and demanded a jury trial. After filing the notice of appeal, the carrier then made another offer lower than the first, and again Dr. A. refused to compromise his fee for this amount. As such, in effect you are prosecuting a jury case on behalf of Dr. A., with little hope of receiving a fee.

Rule 1.16 (b) of the Rules of Professional Conduct indicates that a lawyer may withdraw from representation if that withdrawal may be accomplished without material adverse effect on the interests of the client.

However, Rule 1.16(b)(5) further states that a lawyer may withdraw from representation if it "will result in an unreasonable financial burden on the lawyer...."

Thus, it appears to the Committee that you may withdraw from this case. If your client is able to secure new counsel who is willing to enter an appearance on her behalf, you may then of course file your withdrawal simultaneously with new counsel's entry of appearance. However, if new counsel cannot be obtained by your client court practice requires that you obtain court permission for withdrawal, which in this situation would mean filing a motion to withdraw. In that motion, you may cite the unreasonable financial burden faced by your continued representation. If permission to withdraw is granted, this of course relieves you of concern over violating that part of Rule 1.16(b) which proscribes adversely affecting the interests of your client.

You have raised additional questions in your inquiry. Specifically, you proposed to have Ms. P. execute an Assignment of Benefits and Rights to Sue form. Also, you ask whether you have a right to payment from Dr. A for your services should you continue representation. The Committee is unable to comment on these questions insofar as they are legal in nature and beyond the scope of the charge of the Professional Guidance Committee.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.