Ohio Board Advisory Opinion Op 88-031

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 88-31
Issued December 16, 1988
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: When an attorney withdraws or is discharged from employment, has collected no
fees under a retainer agreement, and has provided no services under said agreement, the attorney is
not entitled to recover the fee stipulated. If no fee is merited, the question of division of fees
amongst partners is moot.
OPINION: We have before us your request for our opinion on whether it is ethical to enforce a
retainer agreement for payment of future fees for legal services which are no longer desired and
will not be performed.
The Disciplinary Rules of the Code of Professional Responsibility are mandatory in
character. They state the minimum level of conduct below which no lawyer can fall without being
subject to disciplinary action. Using those same rules, DR 2-110(A)(3) makes it clear that a lawyer
who withdraws, or is discharged from employment is to refund any part of a fee paid in advance
that has not been earned.
This is further supported by both Ethical Consideration 2-31 of the Ohio Code of
Professional Responsibility, and Model Rule of Professional Conduct 1.16(d). While the Ethical
Considerations are not mandatory in character, “they represent the objectives toward which every
member of the profession should strive.” Code of Professional Responsibility, Preface. The Model
Rules, although not adopted by Ohio, have been adopted by a majority of states and are persuasive.
In light of the nearly identical language used in Ethical Consideration 2-31 and Model Rules
1.16(d), their combined use adds even greater weight to the mandatory Disciplinary Rules.
If, under those rules, an attorney must refund unearned fees, it is logical to assume that he
also must not collect unearned fees. According to Scheinesohn v. Lemonek, 84 Ohio St. 424, 95
N.E. 913 (1911), an attorney may recover the value of services contemplated. However, if, because
of termination, no work was actually performed, the attorney is not entitled to

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a fee based upon whatever benefits the defendant/client might have derived if services had been
rendered. This case clearly shows that an attorney is not entitled to unearned fees.
Applying all of these factors to the situation presented, it is clear that a fee of any sort,
where no services have been performed is unreasonable.
Finally, your request implied a question on the division of such fees by partners in a law
firm. As no work was done and no fee was or should be collected, division of fees by partners in
this situation is unnecessary. However, if a fee had been both earned and collected, it would seem
that the partnership agreement between the attorneys should control the division of said fees.
This opinion is advisory in nature, is based upon the facts as presented and is limited
to questions, arising under the Code of Professional Responsibility.