Ideally, all cases an attorney agrees to take on will be resolved in a timely, successful, and gainful manner. Realistically, not all cases will end this way. Sometimes, an attorney needs to withdraw from a case or take over another case that a different attorney has worked on. This can be driven by ethical issues, practical problems like illness, or just the preference of the client. What rules should an attorney keep in mind as she considers withdrawing from a case? Alternatively, what rules should he be mindful of as he agrees to step into a case as new counsel? In this post, we discuss the rules for withdrawing from a case, and rules for stepping into one as new counsel.
Rules for Withdrawing from a Case
Withdrawing from a case must be consistent with the rules of professional conduct. Withdrawal is typically categorized into two types: mandatory and voluntary.
According to the American Bar Association (ABA) Model Rule 1.16(a), an attorney must withdraw from a case when: “(1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged.” If an attorney believes any of these is the case, she has no choice but to withdraw (or attempt to do so, if the court must grant permission).
Under ABA Model Rule 1.16(b), an attorney may choose to withdraw from a case in the following circumstances: “(1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer's services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists.” A "good reason" for withdrawal usually relates to the breakdown of the attorney-client relationship.
For both mandatory and voluntary withdrawal, the court’s approval may be required. According to Colorado Rules of Civil Procedure (C.R.C.P.) 121 Section 1-1, court approval is not required if the withdrawing attorney has complied with all outstanding orders of the court and files either a notice of withdrawal when there is another active co-counsel, or files a notice of substitution of counsel with Entry of Appearance information included for the replacement attorney. If the withdrawing attorney does not have co-counsel or replacement counsel, he or she must seek the court’s approval to withdraw. The rule requires that a motion to withdraw be filed and served on the client and other parties of record. The court’s approval will not be granted until client and counsel for other parties consent in writing or 14 days pass after service of the motion.
Once the court has granted permission for the lawyer to withdraw from a case, ABA Model Rule 1.16(d) requires the lawyer to take steps to protect the client’s interests—like giving reasonable notice to the client, requesting time for the client to hire new counsel, returning files and property to the client, and refunding advance payments that were not earned. Also, an attorney that withdraws from a case has an ongoing responsibility to maintain confidentiality regarding all matters of the attorney-client relationship.
If an attorney has a complex version of this situation—for instance, where the client objects to withdrawal, or withdrawing might put the client in a difficult situation—the attorney may want to consult with professional ethics counsel to determine how best to proceed. Also, even if court approval is not required, it will be helpful if the attorney’s engagement letter specifies that an attorney may withdraw under certain conditions, like not being paid, or if the client takes action with which the lawyer fundamentally disagrees. Also, even if advance payments have been earned, consider returning them if the client will not feel that it got material benefit from the advance payments.
Rules for Stepping Into a Case
Before agreeing to step into a case, an attorney should attempt to decipher what is going on. It would be wise to explore, if possible, whether the previous attorney’s reasons for withdrawal are something that would also entangle the next attorney, such as an ethical position of the client’s. Sometimes, it may be a very collaborative handoff because of an area of expertise, or because a positional conflict has developed. Other times, the departing attorney may be insulted—or may have neglected the case for some time.
As mentioned above, under C.R.C.P. 121 Section 1-1(2)(a) the court will permit the substitution of counsel and withdrawal of past counsel in one filing. The filing must include the replacement lawyer’s Entry of Appearance information. Whether the Entry of Appearance is filed in this way or separately, if an attorney is stepping into the case, it is essential that both attorneys do their best to facilitate an orderly and efficient transfer of material and files, so the interests of the client are not jeopardized. If the withdrawing attorney has just disappeared, entering counsel may need to clarify that there is in fact no further representation by that attorney.
The attorney entering the case must quickly get up to speed on the current procedural posture and any upcoming deadlines. Filing motions (for instance, for extension) without being aware of the court’s current orders can create a bad impression at a minimum, and potentially procedural havoc.
In sum, when withdrawing from a case or stepping into one, it is important to adequately protect the client’s interests, follow professional rules, and obtain appropriate permission. Failure to follow the rules could cause problems for the client, the attorney, or both.
Featured Image: "Untitled" by Wim Arys on Unsplash.
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