When a client hires an attorney, they expect the attorney to fully commit to their case from start to finish. However, there are instances where an attorney may need to end their representation if it would not be in the client’s best interest to continue.
In such cases, the attorney still has responsibilities to the client, including providing all documents, discovery, and other materials related to the case. If the attorney has informed the court of their intent to withdraw, they are generally required to file specific documents with the court explaining the reason for the withdrawal and confirming that it will not negatively impact the client’s case. Most significantly, the attorney must get permission from the Court to withdraw. Many cases, however, are not in court. What happens then?
Failure to properly withdraw from a case can create problems for the client and may harm their chance of a favorable resolution. If you have been affected by such a situation, and have suffered damages as a result, it is important to seek advice from a legal malpractice attorney.
When Do Attorneys Withdraw From a Case?
There are certainly times when an attorney has an ethical responsibility to withdraw from a case. The following examples are the most common:
- Conflict of Interest—the attorney finds that the opposing party is one for whom he has provided legal services in the past. An attorney cannot represent both parties in a divorce or a business transaction. He or she can only advocate for the best interests of one party. Another situation is where the attorney will personally benefit from the representation, which conflicts with his fiduciary duty towards the client.
- Physical or mental impairment—the attorney suffers a stroke or has a medical condition that requires serious treatment or is suffering from cognitive decline so that he cannot realistically provide the best representation for the client.
- Fraud—the attorney is being asked to participate in a fraudulent transaction, or the client insists that the attorney present a witness who he knows will provide false testimony.
- Financial burden—if facing a severe financial burden in representing the client, the attorney may ask to withdraw from a case. For example, if the case requires the attorney to expend large sums of money to investigate the case or to hire experts and is unable to meet that responsibility, it may be in the client’s best interests for the attorney to withdraw.
- Non-payment of legal fees—In non-contingency matters, clients generally pay a retainer fee and agree to an hourly rate. If the client refuses or is unable to pay legal fees once the retainer amount has been exhausted, the attorney may request that he be allowed to withdraw from further representation since the lack of payment can strain the relationship.
- Conflicting personalities or legal strategies—although an attorney does not have to befriend a client, when the relationship becomes toxic, it may be time to end it. Also, clients at times insist on nonsensical legal strategies or those in conflict with existing law. If the client and attorney cannot agree on an approach to the case and what evidence to present and it becomes a fundamental obstacle in going forward with the case, the attorney may make a motion to withdraw.
- Client wants attorney dismissed—there are times when the client simply cannot work with her attorney due to personality conflicts or disagreements on how the attorney should handle the case and asks the attorney to withdraw.
How to Properly Withdraw from a Case
For any of the reasons given above or others, an attorney who wishes to withdraw from a case must follow certain procedures:
- Notice to client—the attorney should send a written notice to the client outlining the reasons for withdrawing. Returning the file and suggesting next steps are a good faith way to withdraw.
- File a motion for cases in court —a motion to withdraw must be filed with the court requesting permission to withdraw for the reasons given in the motion. The Court may either grant the motion, especially if the client agrees and any harm is minimal or schedule a hearing to determine whether the reasons given are valid and will not harm the client. If a hearing is scheduled, the attorney must present evidence explaining why she wishes to withdraw. The client can contest the withdrawal and then the Court decides whether to grant the withdrawal or not.
If the trial for the case is imminent, it is unlikely the Court will allow the withdrawal especially if the withdrawal would create undue delay or prejudice the parties.
What to Do if Your Attorney Improperly Withdraws
There may be situations where your attorney tells you s/he is withdrawing with no explanation or gives a suspicious reason for doing so. If this occurs, consider the following suggestions:
- Ask to meet and confer with the attorney to attempt to resolve any issues or disagreements.
- If there is a conflict of interest, perhaps the conflict is not serious, or material, and you can consent to the representation by signing a waiver.
- If your disagreements cannot be resolved and you feel that the withdrawal will materially affect your case, you can oppose the motion to withdraw in court
While you may not wish to have the attorney represent you any further, the attorney is required to refund you any unused retainer or other fees paid and to submit all documents obtained in discovery and investigation to the new attorney.
If the case is in litigation and you feel that your attorney is neglecting your case, you need to immediately find a new attorney or notify the court that you need to find a new attorney. You may need to ask for a postponement so that a new attorney can become thoroughly acquainted with the case. Again, the court may be reluctant to grant your wishes under these circumstances.
Retain the Law Office of Burns and Jain
If your attorney withdrew from your case without good reason and jeopardized your case, call a legal malpractice attorney from Burns and Jain at (617) 227-7423 to discuss your possible claim for legal malpractice.