What if My Attorney Wants To Withdraw?

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What If My Attorney Wants To Withdraw From My Case?

There are three ways that an attorney can stop representing you in civil or criminal litigation:

1. Resolution. Your case can end one way or another, in which case most attorneys will send you a termination letter, noting that he will do nothing further for your case. Good examples are when a case is dismissed, settles, or goes to trial and reaches a verdict.
2. Substitution. You can voluntarily release your attorney, and file a substitution of attorney form http://www.courts.ca.gov/documents/mc050.pdf with the court letting the court know who will be representing you going forward and how to contact that person. The new representative can be you or an attorney. Substitution is permitted under Code of Civil Procedure (“CCP”) § 284(1).
3. Withdrawal. Your attorney can file a motion and declaration to ask the court to issue an order allowing them to officially withdraw from your case without your consent. Voluntary substitution is preferable, so withdrawal is only used when the client does not agree to release the attorney from the case. Withdrawal is permitted by CCP § 284(2) and governed by California Rule of Court 3.1362.

Common Reasons Attorneys Quit
Sometimes, clients and attorneys find they cannot continue to work together for one reason or another. On the attorney side, some of the most common reasons are that the client does not pay, will not cooperate with the attorney’s requests or advice, or is not truthful with the attorney. A less common reason is that the client does, or plans to do, something that the attorney cannot ethically participate in; for example, present false testimony or fabricated evidence, or continue prosecuting a case that the attorney believes has no justification.

When Your Attorney Wants to Quit
If one of these situations arises, the attorney will ask the client to sign a substitution form. Every now and then clients refuse, even though the attorney may have explained the advantages of doing so and not forcing the attorney to officially withdraw. Often, a withdrawal is associated with a serious breakdown in the relationship (or the client would just sign the substitution form when asked to do so). Sometimes that breakdown results in the client not fully understanding the consequences of a withdrawal, since they now distrust whatever their attorney tells them about it.

Ethical Rules About Ending Representation
Attorneys have certain ethical duties to clients when we leave a case: “A member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with [the rule relating to the return of money/property and the client file], and complying with applicable laws and rules.” California Rule of Professional Conduct 3-700(A)(2).

There are times when an attorney “must” withdraw, and there are times when an attorney “may” withdraw. These are called mandatory and permissive withdrawal respectively.

Mandatory Withdrawal
An attorney “must” withdraw if continued employment with the client will result in a violation of ethical rules; if the attorney’s mental or physical condition is such that he cannot represent his client effectively; or if he learns that the case lacks probable cause. California Rule of Professional Conduct 3-700(B).

Permissive Withdrawal
An attorney “may” withdraw if the client insists on pursuing an unsupportable claim or illegal course of conduct or insists that the attorney do so; doesn’t pay fees or expenses as required to by the retainer agreement; refuses to follow the attorney’s advice; or otherwise makes it unreasonable difficult for the attorney to carry out the representation. California Rule of Professional Conduct 3-700(C).

Laws About Withdrawal

Later Recovery In A Contingency Case
When an attorney who is on contingency is mandated to withdraw, and the case later settles or wins at trial, she is entitled to recover whatever she is owed for her services prior to the withdrawal. “But, [in seeking a recovery after a withdrawal,] the attorney has the burden of proof to show: (1) counsel’s withdrawal was mandatory, not merely permissive, under statute or state bar rules; (2) the overwhelming and primary motivation for counsel’s withdrawal was the obligation to adhere to these ethical imperatives under statute or state bar rules; (3) counsel commenced the action in good faith; (4) subsequent to counsel’s withdrawal, the client obtained recovery; and (5) counsel has demonstrated that his work contributed in some measurable degree towards the client’s ultimate recovery. Estate of Falco, 188 Cal.App.3d 1004, 1016 (1987).

Appropriate Reasons For Permissive Withdrawal
Courts have noted, “The office of attorney is one of the very highest confidence and when the client suspects and questions the good faith of his attorney the attorney should be permitted to withdraw from the case unless some very compelling reason exists for forcing him to continue with the ungrateful task.” Heple v. Kluge, 104 Cal.App.2d 461, 462 (1951).

Practical Differences Between Substitution And Withdrawal
The client and attorney can meet together and sign a substitution form, fax it to the new counsel, and file it in court the same day. It is a single page form and requires no explanation of who wants the substitution, or why. No adversary has to consent or be informed of the substitution until it has been decided, there is no need for judicial approval, and no third party has the opportunity to challenge the substitution. On the other hand, a withdrawal necessarily signals that it is the attorney who desires to end the representation. A withdrawal, further, must be permitted by a judge, who will want to know generally why the attorney is seeking to withdraw. Most of the time, the court will accept counsel’s somewhat vague representations if the court believes the attorney is acting in good faith, but the court need not “accept a sweeping claim of conflict and ‘rubber stamp’ counsel’s request to withdraw.” Aceves v. Superior Court, 51 Cal. App. 4th 584, 592 (1996). The attorney has a duty to respond to the court’s inquiries as to the reason for any conflict, at least in general terms without compromising the attorney-client privilege. Id. at 592-593. Typically this means a minimum of a few weeks delay until the attorney can get a hearing on the motion. Finally, the motion to withdraw must be served in advance, on not only the client but on all parties who have appeared in the case – all of whom have standing to oppose the withdrawal. Manfredi & Levine v. Superior Court, 66 Cal. App. 4th 1128, 1132 (1998) (“the granting of a motion to be relieved as counsel may work an injustice on a third party”), citing Linn v. Superior Court, 79 Cal. App. 721, 725 (1926).

Should You Sign The Substitution?
The answer is almost always yes – especially if the relationship has turned bad enough that you no longer like or trust one another. You might negotiate how much of a refund you are entitled to before you do. But be very careful before trying to use your signature as a bargaining chip, because if you do not willingly sign – even if you just say you won’t sign, then change your mind and agree the next day – your attorney can arguably bill you for his time preparing the motion to withdraw since you forced him to do so by not cooperating!

When To Consider Not Signing
One reason to be thoughtful about signing a substitution is if you are very close to trial. You may be hesitant to substitute your attorney out because of the expense of getting a new attorney up to speed in a short time. In addition, the attorney who has been with you all along will just know the case, the parties, the witnesses, and the facts much better than a brand new attorney, even if they have adequate time to review the file.

Reasons To Sign
Even if you are close to trial or want to stick with your current attorney for other reason, there are still very compelling reasons to substitute voluntarily. First, and most importantly, if your attorney’s heart is not in it, her representation will not be as good, and the stakes are much too high in any case to ignore this factor. I am constantly thinking about what else I can do to try to help my clients get better, faster results. I call attorney friends and get their advice and ideas. I research possible alternatives to see if they might be better. I spend my own time studying issues that I think may come up in my cases. All of that extra attention means my clients get better representation. If I didn’t like my clients, why would I bother with all that? And some attorneys will take it a step further – particularly if they are not getting paid. They will basically just shut down on the case. They might meet the deadlines to avoid a malpractice lawsuit, but they won’t do anything on the case that they aren’t required to. When the other side files motions, they’ll file a 1 page opposition instead of a 10 page opposition – or no opposition. They won’t depose anyone; they won’t send out discovery questions; they won’t prepare for trial or subpoena all the witnesses. The chances for your attorney to miss something critical because they didn’t care enough about your case are too many to risk continuing with someone who doesn’t want to represent you.

Second, if your attorney is forced to seek the court’s permission to withdraw, it becomes a major red flag in your file simply because it is such a drastic measure, and relatively rare. Any decent attorney who contemplates taking your case will realize that you refused to cooperate with your old attorney. You now essentially have “problem client” stamped on your forehead, and most attorneys will run as fast as they can from you. The job of being a lawyer is just too hard and too stressful to deal with fighting with a client on top of everything else.

I can think of only two scenarios in which I would even consider accepting a client whose prior attorney had withdrawn. The first is if the prior withdrawal was over nonpayment of bills, and the client agreed to pay me up front. The second is if the client was truly unable to get anyone else to represent her and the case was extremely important, such as a case where someone is charged with a crime or is faced with their children being taken from them.

Link to Ethical Rules
The complete rules of ethics for attorneys practicing in California can be found on the bar website:
http://rules.calbar.ca.gov/Portals/10/documents/2015_CaliforniaRulesofProfessionalConduct.pdf

IMPORTANT NOTE: These rules are ethical rules – not the law. As strange as it might seem, they are not the same thing. Committing an ethical violation does not equal committing malpractice does not equal committing a crime. It is not “illegal” for an attorney to break these rules, and you may or may not be able to bring a malpractice action against them for doing so. If you believe your attorney may have broken an ethical rule, the best thing to do is to bring it up with them and give them the chance to make amends or suggest a resolution. If you are met with resistance, you can always file a complaint with the State Bar later.

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