Smith v. Bryant , 264 N.C. 208 ( 1965 )

141 S.E.2d 303 (1965) 264 N.C. 208

Cassie SMITH
v.
Emma Troy BRYANT.

No. 685.

Supreme Court of North Carolina.

April 7, 1965.

Powell & Powell, Whiteville, for plaintiff.

Payne and Canoutas and R. M. Kermon, Wilmington, for defendant.

SHARP, Justice.

The transcript of the trial below reveals defendant to have been badly in need of legal counsel. She had employed a lawyer who had entered a formal appearance upon the court record by filing her answer to the complaint. Thereafter he was not at liberty to abandon her case without (1) justifiable cause, (2) reasonable notice to her, and (3) the permission of the court. Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133; Gosnell v. Hilliard, 205 N.C. 297, 171 S.E. 52.

Whether an attorney is justified in withdrawing from a case will depend upon the particular circumstances, and no all-embracing rule can be formularized. It is generally held, however, "that the client's failure to pay or to secure the payment of proper fees upon reasonable demand will justify the attorney in refusing to proceed with the case." Gosnell v. Hilliard, supra at 301, 171 S.E. at 54; 7 C.J.S. Attorney and Client § 110 (1937). Nevertheless, this does not mean that an attorney of record can walk out of the case by announcing to the court on the day of the trial that he has withdrawn because he has not been paid. An attorney not only is an employee of his client but also is an officer of the court. This dual relation imposes a dual obligation. Roediger v. Sapos, 217 N.C. 95, 6 S.E.2d 801. To the client who refuses to pay a fee the attorney must give specific and reasonable notice so that the client may have adequate time to secure other counsel and so that he may be heard if he disputes the charge of nonpayment. To the court, which cannot cope with the ever-increasing volume of litigation unless lawyers are as concerned as is a conscientious judge to utilize completely the time of the term, the lawyer owes the duty to perfect his withdrawal in time to prevent the necessity of a continuance of the case. "An attorney at law is a sworn officer of the court with an obligation to the public, as well as his clients, for the office of attorney at law is indispensable to the administration of justice," Parker, J. in Baker v. Varser, 240 N.C. 260, 267, 82 S.E.2d 90, 95. "The attorney's obligation crystallizes into one of noblesse oblige," Comment, Attorney and Client—Withdrawal of Attorney, 18 N.C. L.Rev. 338, 344.

As between the attorney and his client the relationship may ordinarily be dissolved in good faith at any time, but before an attorney of record may be released from litigation he must satisfy the court that he is justified in withdrawing. The first requirement for his withdrawal is proof of timely notice to his client. Obviously, written notice served on the client would be the most satisfactory evidence of compliance with this requirement. G.S. § 1-592. Mr. Rhoe's announced withdrawal at the time this case was called for trial was, of course, subject to the court's approval. On the facts disclosed by the record, Judge Braswell should have refused him such permission.

"When defendant's counsel undertook to withdraw from the case at the moment the cause was ordered to trial the court below should have denied him the right to do so. If counsel insisted upon withdrawing or declined to participate in the trial in defense of his client's rights, he being an officer of the Court, the Judge had ample authority to require him to proceed in good faith." Barnhill, J. (later C. J.) in Roediger v. Sapos, supra 217 N.C. at 99, 6 S.E.2d at 803, (quoted with approval in Perkins v. Sykes, supra 233 N.C. at 153, 63 S.E.2d at 138).

Having, however, acquiesced in counsel's withdrawal on the afternoon of January 9th, his Honor should have continued the case for a reasonable time. Instead, he set the case for trial at 9:30 the next morning. Defendant contends, no doubt correctly, that Judge Mallard's order at the preceding term, enjoining her from encumbering or disposing of any of her property pending the entry of a final judgment in this case, effectively prevented her from securing other counsel overnight. Even without such a financial handicap, defendant, we apprehend, would have had difficulty in finding a lawyer willing to undertake her defense to this action without more time for investigation and preparation.

It is quite possible that Mr. Rhoe's withdrawal from this case was entirely justified; that he had given defendant adequate notice; and that she had negligently or contumaciously failed to attend to her case. If these are the facts, however, the record fails to show them. It may well be that another trial will not improve defendant's situation; but, since she asks for it, on the record she is entitled to it. The judgment below is vacated, and a new trial is ordered.

New trial.