Smith v. Bryant

• Decision Date: 07 April 1965
• Docket Number: No. 685,685
• Citation: Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303 (N.C. 1965)
• Parties: Cassie SMITH v. Emma Troy BRYANT.
• Court: North Carolina Supreme Court

Page 303

141 S.E.2d 303

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. 267, 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mean that an attorney of record can walk out of the case by announcing to the court on the day of the trial that he has withdrawn because he has not been paid.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, or course, subject to the court's approval. On the facts disclosed by the record, Judge...