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OBA Ethics Counsel

Ethics Opinion No. 160

Adopted October 8, 1952

QUERY.

The Central Committee has referred to the Ethics Committee a complaint and a reply thereto, wherein a member of the bar complains against another because of the following facts: (for obvious reasons true names are not used.)

Sadie employed A to represent her in a compensation case before the Industrial Commission. A states that he had a contingent fee contract providing for a 25% fee if the case was settled and for a 33 1/3 % fee if tried; that he had an offer to settle for $2700.00 on a joint petition which he recommended to Sadie; that she left his office to "Think it over". Later attorney B called A stating that Sadie had been to see him about representing her in the same case. A informed B that he was "agreeable to withdrawing ... upon condition that we were paid in full for services rendered to date. We told Mr. (B) of our offer for $2700.00 settlement and upon that basis our fee would be $675.00." That thereafter B advised Sadie to write the Industrial Commission asking them to discharge A and determine his fee. That a hearing was had before the Commission which "came to the conclusion that it had no power to terminate the contract between Mrs. (Sadie) and me." That he told B on two occasions that he had not been "paid or discharged" and that he still represented Sadie in the matter. That B represented Sadie thereafter before the Commission and that by so doing he violated the ethics of the profession and should be disciplined.

B submitted a six page response which doesn't materially vary the facts. The only additional fact which we shall recite is that B informed Sadie that she owed A a fee.

In addition there has been submitted a transcript of a hearing before Chairman Tom Hieronymus of the Industrial Commission, on the question of attorneys fees. A review of the transcript will not aid in determining the question of ethics involved.

OPINION

There is nothing in the facts submitted to indicate that B solicited his retainer by Sadie. In the absence of such fact, B has done nothing to violate the ethics of the profession.

Canon 7 provides in part:

"... A lawyer should define association as colleague if it is objectionable to the original counsel, but if the lawyer first retained is relieved, another may come into the case."

"Efforts, direct or indirect, in any way to encroach upon the professional employment of another lawyer, are unworthy of those who should be brethren at the Bar; but, nevertheless, it is the right of any lawyer, without fear or favor, to give proper advice to those seeking relief against unfaithful or neglectful counsel, generally after communication with the lawyer of whom the complaint is made."

By quoting from Canon 7 we do not mean to imply that A was either unfaithful or neglectful, but merely to show that a client has a right to terminate the services of one and employ another.

We recognize that professional courtsey [sic] calls upon a lawyer to recommend that the discharged attorney be paid a reasonable fee for the services performed. The amount of the fee or its reasonableness is not a question to be determined by the newly retained lawyer nor by the ethics committee but is a question of contract law to be determined by the courts or Industrial Commission. We do suggest that all lawyers should, in fixing their fees, be familiar with Canons 12, 13 and 14.

The Oklahoma Supreme Court has followed the rule as stated in 7 C.J.S. Attorney and Client § 109, p. 941, wherein it is said, "... the client has the absolute right to discharge the attorney and terminate the relation at any time even without cause, no matter how arbitrary his action may seem, ...".

The Court in White v. American Law Book Co., 106 Okl. 166, 233 P. 426, said,

"The relationship of attorney and client is one of reliance, trust, and confidence. When any element of this relationship is destroyed, for whatever reason, the client has the absolute right, in the interest of his own welfare to discharge the attorney. ..."

As said in Opinion 10 of the American Bar Association the client "... has the apparent right to select his own counsel, to discharge such counsel, and to substitute other counsel, as it may from time to time see fit. A lawyer may properly accept employment to handle a matter which has been previously handled by another lawyer, provided that the other lawyer has been given notice by the client that his employment has been terminated. The lawyer originally engaged has his remedy at law for any breach of contract that may occur through the client's termination of his employment but he cannot insist that his professional brethren refuse employment in the matter merely because he claims such a breach of contract. To hold otherwise would be to deny a litigant's right to be represented at all times by counsel of his own selection."

See also American Bar Association's Opinions Nos. 63, 130, 149 and 209.