Withdrawing from representation the right way

Because the relationship between an attorney and client can be extremely personal, it can be difficult to recognize when it is time to end the relationship. However, for many reasons, attorney withdrawal sometimes is the most prudent course to get out of a problematic situation.

However, if withdrawal is not done properly, it can make a bad situation even worse and result in a legal malpractice claim or a bar complaint. Thus, often the first question is whether withdrawal is even possible under the circumstances. The steps can differ between litigation matters and non-litigation matters, as court approval may be necessary for active litigation matters.

No matter the type of case, many attorneys find that a good place to start is often to discuss with the client and seek consent to withdraw. Such discussions can be contentious, particularly if withdrawal is appropriate because the attorney-client relationship is beyond repair. However, by sending the client a written request for consent to withdraw, any ambiguity as to the specific matters from which the attorney is withdrawing and the reasons for the withdrawal can be reduced. The client can also be given advance notice that, upon withdrawal, the client would have to retain new representation if desired.

Another helpful question is to ask the client to state any objections to the withdrawal. California Rule of Professional Conduct 3-700(A)(2) provides that an attorney may not withdraw from a matter until "the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client." Thus, to the extent the client expresses concerns regarding the withdrawal, the attorney can evaluate those concerns and determine whether they can be addressed so as to avoid any suggestion of prejudice to the client as a result of the withdrawal.

Moreover, Rule 3-700(A)(2) specifies that reasonable steps by the withdrawing attorney include "giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules." However, as reflected in the Discussion included with Rule 3-700, there is a limit to what may constitute "reasonable steps." In particular, "[a]bsent special circumstances, 'reasonable steps' do not include providing additional services to the client once the successor counsel has been employed and rule 3-700(D) [discussed below] has been satisfied."

In evaluating the potential for prejudice to the client, some factors to consider are: the complexity of the matter, whether co-counsel is already involved, and whether there are any imminent deadlines that make it difficult for the client to find replacement counsel. For example, terminating a client days before a trial that cannot be continued may be less than ideal circumstances for withdrawal.

Creating a written record regarding the basis for or terms of withdrawal can be helpful if any disputes later arise regarding the propriety of withdrawal. However, regardless of the client's response, the next step in many situations after advising the client is to actually effect the withdrawal. As noted, because of the involvement of the court, the mechanics of withdrawal can vary in litigation matters.

Withdrawing from Litigation

Some attorneys choose to specify the precise expected withdrawal process at the beginning of the relationship, in the engagement letter and/or fee contract. However, as noted above, when the client matter involves litigation, there may also be court rules to consider that can vary greatly between jurisdiction.

In many courts, if the client is merely substituting counsel and consents to the substitution, the withdrawing attorney typically only needs to file a notice of substitution of counsel signed by the proper persons. However, where the attorney is withdrawing without substituting new counsel, the requirements can be more onerous.

California Code of Civil Procedure Section 284 provides that counsel may be changed at any time before or after judgment or final determination by (1) consent of both the client and the attorney or (2) by order of the court upon application by the client or by the attorney, and after notice from one to the other. The latter can often be accomplished by a motion to be relieved as counsel pursuant to California Rules of Court, Rule 3.1362. The motions to be relieved as counsel must include a declaration stating "in general terms and without compromising the confidentiality of the attorney-client relationship" why client consent was not obtained to withdraw.

The federal courts sitting in California have similarly enacted rules governing withdrawal. For example, Local Rule 83-2.9.2.1 of the U.S. District Court for the Central District of California District Court, Central District, "an attorney may not withdraw as counsel except by leave of court."

Post-Withdrawal

Under the California Rules of Professional Conduct, Rule 3-700(D), an attorney whose employment has terminated shall "promptly release to the client, at the request of the client, all the client papers and property." Generally speaking, this may include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client's representation. The attorney also shall "promptly refund any part of a fee paid in advance that has not been earned."

In addition to complying with Rule 3-700(D), attorneys may also consider sending another letter to the client to confirm that the firm's files have been closed, which can signal the end of the attorney-client relationship. For many attorneys, the key is to avoid any ambiguity and to notify the client of all aspects of the attorney's withdrawal.