WHEN IT COMES TIME TO BAIL OUT
July 28, 2011 § 5 Comments
Sometimes it happens that you find it necessary to withdraw from representing a client. Maybe an ethical dilemma has reared its head. Or perhaps you and your client have developed irreconcilable differences. Or it could be that your client has not met the terms of the employment contract as to cooperation or payment or in some other way.
Once you have entered an appearance in a case, you are in it until the court lets you out. You may not avoid responsibility simply by not participating further. So when the need arises, how can you make an effective exit?
Uniform Chancery Court Rule (UCCR) 1.08 provides: “When an attorney makes an appearance for any party in an action, the attorney will not be allowed to withdraw as counsel for the party except upon written motion and after reasonable notice to the client and opposing counsel.”
In other words, it’s not good enough to get an agreed order signed by counsel opposite and present it to the judge. Nor is it adequate to get your client to sign off on an order.
Here is what you have to do, step by step:
- File a motion to withdraw. Set out a general statement of your reason without compromising the interest of your client in the litigation.
- File the motion and send a copy of it with certificate of service to opposing counsel and the client.
- Notice the motion for hearing.
- If your client and opposing counsel will sign an agreed order allowing you to withdraw, present it to the court for entry.
- If either your client or opposing counsel, or both, object, hold a hearing and ask the court to rule on your motion.
- If the case is set for trial, most chancellors will allow you to withdraw only in the most urgent and exigent circumstances.
- No chancellor will allow you to withdraw if to do so will seriously prejudice your client.
- You may not withdraw in any probate matter unless there is an attorney who will substitute for you. UCCR 6.01 requires that the fiduciary retain an attorney, unless the fiduciary is a licensed attorney.
- Be general in stating a reason. Okay: “The undersigned attorney and the plaintiff have differences of opinion about handling this case that can not be resolved.” Not okay: “My client has filed three bar complaints against me and has retained counsel to sue me for malpractice, and I have reason to believe he is concealing assets from the court.”
- Don’t include any language in your order that absolves you of any responsibility for anything you did in the case, or approves everything you did; that’s overreaching. You may state that you are relieved of all further responsibility from and after the date of the order allowing withdrawal.
- Many chancellors will not permit you to withdraw if the only basis is non-payment of fees. Their rationale is that you took on a professional duty to represent the client when you entered an appearance, and that duty is higher than your desire to be paid.