You can't take a client's money and then fail to proceed with his case because the client is not paying the bill. That's the message today from the Court of Appeals, sending an immigration lawyer to the grievance committee for possible violation of the ethical rules.
The case is Bennett v. Mukasey, issued on May 12. The lawyer took a retainer from the client but was not paid in full. So the lawyer did not process the appeal, and the Court of Appeals dismissed the case. One year later, the attorney asked the Court to reinstate the case and explained that he did not prosecute the appeal because the client wasn't paying his bill. As Judge Newman states in his ruling, "By his own admission, Rosenthal evidently believes that a
retainer agreement and initial payment for an appeal imposes upon counsel no obligation to pursue the appeal, that required steps may await further payment, and that a client’s appeal may be permitted to be defaulted and dismissed for lack of such further payment. The
Lawyer’s Code of Professional Responsibility, as adopted by the New York State Bar Association makes clear that Rosenthal is incorrect."
The Court of Appeals will not punish the client for the sins of his lawyer, so the case is reinstated. The lawyer, however, will have to answer to the Second Circuit's grievance panel. For the rest of us, here is some legal advice:
a lawyer’s practice of accepting an initial retainer fee and then deliberately failing to take required action because of non-payment of additional fees, thereby permitting his client’s petition to be dismissed, is unacceptable.
. . .
Of course, a retained lawyer can either pursue contractual remedies to collect unpaid fees or seek leave to withdraw, but he cannot abandon his client for lack of a promised payment nor neglect his professional responsibilities until such payment has been made.