When an attorney withdraws in the middle of a client's case, that withdrawal is usually categorized as either "mandatory" or "voluntary." In this article, we'll explain the difference between these two processes, along with some examples of each. Keep in mind that with either type of withdrawal, the attorney usually needs to ask for and obtain the court's permission before ending representation of one of the parties in a civil lawsuit in the middle of the case.
An Attorney's Mandatory Withdrawal
If the circumstances require that the attorney withdraw from representation, the withdrawal is considered mandatory. Situations that could give rise to an attorney's mandatory withdrawal from a case include:
- the attorney is not competent to continue the representation
- the attorney becomes a crucial witness on a contested issue in the case
- the attorney discovers that the client is using his services to advance a criminal enterprise
- the client is insisting on pursuit of a frivolous position in the case
- the attorney has a conflict of interest or cannot otherwise continue representation without violating the rules of professional conduct, and
- the client terminates the attorney's services. (Learn more: How to Fire Your Attorney.)
An Attorney's Voluntary Withdrawal
Where the circumstances permit, but do not require, the attorney to cease representation, the withdrawal is considered voluntary.The circumstances under which an attorney may withdraw mid-case include:
- the client is refusing to pay the attorney for his or her services in violation of their fee agreement
- the client is refusing to follow the attorney's advice
- the client is engaged in fraudulent conduct, and
- there has been a breakdown in the attorney-client relationship that prevents the attorney from effectively representing the client in the case.
Getting the Court's Permission to Withdraw
Even where withdrawal is mandatory, an attorney must first seek and obtain the court's permission before ending representation in the middle of a case.
While a court will usually be sympathetic to the plight of an attorney faced with circumstances requiring or permitting withdrawal, permission to immediately withdraw may not be granted if:
- the facts giving rise to the withdrawal request are in dispute, or
- withdrawal would materially prejudice the client's ability to litigate the case.
Once an attorney has received court permission to withdraw from the representation, the attorney must return all of the client's property in his or her possession, including client funds and any unused or unearned prepaid fees or retainers. The attorney must cooperate with the client's new counsel and must hand the client's complete file over as directed.
An attorney who has withdrawn from representation has a continuing professional obligation to maintain the confidentiality of all matters within the attorney-client relationship, so for example the attorney cannot become a witness for the client's opponent in the case on matters falling within the scope of the attorney-client privilege. This obligation arises from the rules of professional responsibility that govern the duties of attorneys to current and former clients, and a violation of these rules can result in disciplinary action against the attorney, up to and including disbarment.
Learn more about Changing Attorneys Mid-Case and Refunds and Billing Disputes When Changing Attorneys.