The Lawyer’s Duty Until the Order Allowing Withdrawal
October 28, 2019 § Leave a comment
As I mentioned here not long ago, filing a motion to withdraw does not get you out of the case. You are in it until the judge signs an order allowing withdrawal and the order is entered. You can read that post here.
Here is what the MSSC said about it:
We take this occasion to announce to the bench and bar and the state of Mississippi at large that any time an attorney undertakes to represent a client in any court of record in this state that there attaches at that moment a legal, ethical, professional and moral obligation to continue with that representation until such time as he is properly relieved by the court of record before whom he has undertaken to represent a client. This is true regardless of the circumstances under which his representation of that client may be terminated. This withdrawal may be accomplished only by the filing of a motion with the court with proper notice to the client. The attorney may then withdraw upon the entry of a written order by the court granting him leave to withdraw from representation of his client.
Myers v. Miss. State Bar, 480 So. 2d 1080, 1092-93 (Miss. 1985).
So, what if your client fires you? Do you get to simply walk away? No. You must first file a motion to withdraw, set it for hearing, and notice your client; or get your client to join in the motion. If opposing counsel doesn’t object, get her to sign an agreed order. If there is an objection by anyone, bring it on for hearing. Unless and until the judge signs an order letting you withdraw, you are in the case with every ethical and professional duty to your client. In Alexander v. Miss. Bar, 725 So. 2d 828, 831 (Miss. 1998), the court said, “A lawyer who improperly fails to withdraw after being discharged or when withdrawal is otherwise required is, in general, subject to professional discipline and, in litigation matters, to sanctions imposed by the tribunal … .”
What do you do if another attorney enters an appearance on your side of the case and it appears, but is not clear, that your client no longer wants to deal with you? Can you just stop participating? No. Unless and until you go through the procedure above you continue to have every ethical duty to that client.
What if you discover that mandatory withdrawal is required, such as when further representation would result in violation of ethical rules or the law? Can you stop representing the client? No. You must file a motion and obtain an order. Unless and until you do, you continue to have every ethical duty to that client. Alexander, supra.
And keep in mind that even though you may have have disengaged from the client in your mind, you may have to continue representation if the court disapproves your request. “[T]he lawyer may not withdraw when the lawyer holds the stated belief of a significant disproportion between the detrimental effects that would be imposed on the client by the contemplated withdrawal against detrimental effects that would be imposed on the lawyer or others by continuing the representation.” Restatement (Third) of the Law Governing Lawyers, § 32, cmt a.
The authority cited is from Jackson and Campbell, Professional Responsibility for Mississippi Lawyers (2010), § 7.5.