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OBA Ethics Counsel

Ethics Opinion No. 66

Adopted February 23, 1934

The Board is in receipt of the following request for an advisory opinion:

"'A' has retained attorney 'X' under the terms of a contingent fee contract, to represent 'A' in the settlement of an estate. The size and value of the estate is as yet undetermined and 'A' has become dissatisfied with the manner and attitude in which attorney 'X' is handling the case and desires to discharge him. "As yet attorney 'X' has failed to name a sum as a reasonable attorney fee for the services already performed by him although 'A' has offered to pay him a reasonable fee for services already performed. Such payment to be made upon final adjudication of the case.

"Question 1: May attorney 'Y' properly accept employment from 'A' for the purpose of discharging attorney 'X'?

"Question 2: May attorney 'Y' properly accept employment from 'A' to proceed with the estate case after 'A' has notified attorney 'X' that he has been discharged and notice of such dismissal filed in the records of the case?

"Question 3: If attorney 'X' refuses to withdraw from the case may attorney 'Y', under any circumstances, properly accept employment pertaining to the case?"

In response to Question 1:

"Y" should not accept employment for the purpose of discharging "X", "X" should be discharged by "A" before "Y" may properly accept employment from "A". This to prevent unseemly conflicts between members of the bar, and for the reason that the discharging of "X" is not in line of practice of law.

The response to Question 2 is yes.

In response to Question 3:

In Advisory Opinion No. 39 (November 1932 State Bar Journal) under somewhat similar circumstances, the Board held that a client had the power, if not the right, to terminate the employment of an attorney. The Board is of the opinion that "Y" may with propriety accept employment from "A" after he has discharged "X" and has advised him of that fact, because "X" thereafter is no longer attorney for "A".