A motion to withdraw is a document an attorney files with the court when that attorney no longer wishes to represent his client. All attorneys in the United States are governed by rules of ethics or professional conduct that require them to represent their clients diligently and keep their clients' information and communications confidential; however, if the relationship breaks down and the representation cannot continue, a motion to withdraw is the lawyer's way out.
Attorney Duties to Clients
Attorneys have many duties to their clients including duties to represent the client diligently, be responsive to the client, keep the client's information confidential, render candid and appropriate advice and advocate for the client.
However, lawyers' duties have limits. For instance, they cannot advise a client to commit a crime or represent a client in frivolous litigation without legal merit. A lawyer also must have candor toward the tribunal, which means the lawyer cannot make false statements to the court or other governing tribunal. If a client is making requests of the lawyer that she cannot agree to do, she may need to withdraw as counsel.
Reasons to Withdraw as Counsel
An attorney might withdraw as counsel for a number of reasons, including:
- The client's inability to pay legal fees.
- The client's lack of honesty or insistence upon conducting illegal activity.
- The client's request for the attorney to engage in illegal activity or actions that violate the rules of professional conduct.
- The client's refusal to acknowledge that a claim is not valid.
- The client's decision to go without counsel or to use a different attorney.
- The attorney's illness or injury that renders her incapable, either physically or mentally, of properly representing the client.
Withdrawing by Consent or Substitution
Every jurisdiction has its own rules about how an attorney may withdraw as counsel. If the client and the attorney agree to part ways and client has found a new lawyer, a motion might not be necessary – a substitution of attorney may be filed, and the original lawyer will be relieved of duty. Even if no new attorney is in the wings, the client's agreement may be enough as long as the court is satisfied that the client's decision was made with sufficient understanding of the situation.
Read More: What Does Substitution of Attorney Mean?
Filing a Motion to Withdraw as Counsel
If the client will not consent, the motion should describe the reasons why the lawyer seeks withdrawal. However, the motion should not contain any confidential or privileged information. Attorneys cannot divulge communications that were private between themselves and their clients, with some exceptions.
The Duty of Confidentiality
An attorney withdrawing because he believes his client is behaving dishonestly must use caution in the motion to withdraw and not reveal any discussions. Typically, this is accomplished by describing it as a "breakdown of the attorney/client relationship" or for "professional considerations." If the court needs more information, the attorney may need to tell the judge in private.
Objecting to the Motion to Withdraw
If an attorney files a motion to withdraw as counsel, he must send copies to the client, who has the opportunity to object to the motion. The motion should clearly state the deadline for filing a response and the date of any hearing, if one is scheduled. If no objection is filed, the court might grant the motion without further action by the attorney, and the relationship will be severed. If the client objects, the court will likely hold a hearing on the matter and render a decision after hearing oral argument from both sides.
An attorney may file a motion to withdraw when the relationship with the client breaks down to the degree that the attorney can no longer represent the client.
Rebecca K. McDowell is a creditors' rights attorney with a special focus on bankruptcy and insolvency. She has a B.A. in English from Albion College and a J.D. from Wayne State University Law School. She has written legal articles for Nolo and the Bankruptcy Site.