Motion to Withdraw as Counsel vs. Substitution of Counsel
Can My Lawyer Fire Me? – Motion to Withdraw as Counsel
The previous article discussed the process of substitution of counsel, which is when you and your attorney sign a court form to change attorneys. In essence, that is when you and your lawyer agree on paper to mutually part ways.
But, what happens if you won’t agree to your lawyer getting out of your case? In other words, your lawyer wants out, but you don’t.
In that situation, it’s obvious that your lawyer can’t simply sign or file the substitution of attorney form that we previously discussed. In order for that document to be effective, your attorney and you will have to agree to your attorney withdrawing at the very least.
Fortunately, or maybe rather more unfortunately if you don’t want your attorney to withdraw, that doesn’t mean that he or she is without any recourse. It’s still possible for your attorney to try to withdraw from your case, but it is certainly much more difficult.
That is because your attorney will have to file what is called a “motion to withdraw as counsel”. This is a standard form / motion that your attorney may file with the court to try to get out of your case.
In filing it, your attorney will need to provide a reason for his or her withdrawal. Oftentimes, what you’ll see is your attorney will claim: “other conduct renders it unreasonably difficult for the member to carry out the employment effectively”. What that means is that some sort of conflict between you and your attorney has presented itself, such that your lawyer believes they can no longer represent you.
While this is the most generic basis for you attorney’s withdrawal, it certainly isn’t the only ground your attorney can provide to withdraw. Other, more explicit grounds, can be found in the rule more directly on point – California Rules of Professional Conduct, Rule 3-700. Obviously, if you are no longer paying your attorney their fees, or directing them to commit conduct that is unlawful, those will also be grounds for withdrawal.
Thereby, even if you do not agree to a substitution of counsel, your attorney may still file a motion on any of these other grounds asking the court to withdraw.
That doesn’t mean though that the court will automatically grant your attorney’s withdrawal. There are some reasons that the court may deny your attorney’s motion to withdraw as counsel, a lot of which leads to issues beyond this article. But for instance, the court may believe that the trial date in your case is coming up very soon, so leaving you without an attorney just before trial may not be in everyone’s best interest. Or, the court may determine that the basis for your attorney’s withdrawal is not actually justified, and even deny it on that reason.
From experience, it’s not often that we’ve seen the court deny an attorney’s request to withdraw from a case. Sometimes, it may be an issue when the case is getting really close to trial. The court may not want to create an issue with your attorney leaving you right before trial because of the complications it may cause.
More often though, the times that the court denies the attorney’s motion to withdraw is when they don’t follow the procedural rules. By this we mean something as simple as filling out the mandated form / motion referenced above. That form /motion is always required when an attorney is looking to withdraw. If it is not used exactly, or filed and served properly as the other rules require, then the court may deny the motion.
Regardless, if you find yourself in this position, it’s not a comfortable place to be. When you find your attorney looking to withdraw, you’ll definitely be in an area of uncertainty. Will your attorney be allowed to withdraw? Do you need a new attorney? Are you going to have to represent yourself? What will you need to do?
These are all certainly good questions to be thinking about and reason why you should contact a local attorney to help you.
If you have a question or are considering filing a claim or lawsuit, please contact us to discuss with one of our experienced accident attorneys at (619) 736-0080 for a free consultation.
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