Tribunal Permission to Withdraw

Tribunal Permission to Withdraw

Having good cause to withdraw does not give a lawyer the right to withdraw. The lead-in to Rule 1.16(b) says so in its first words: “Except as stated in paragraph (c), a lawyer may withdraw from representing a client if” a listed ground applies.¹ Paragraph (c) is the exception. One court quoted its text this way: “When required to do so by rule or when ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.”² Because the lead-in governs every ground in paragraph (b), a lawyer who satisfies any of them must still stay if a tribunal so orders.

A lawyer in a pending matter who wants out therefore faces two questions. Does a ground exist? And will the tribunal let the lawyer go? The answers can differ, so a lawyer may hold a ground that nobody disputes and still be told to stay.

This unit concerns permissive withdrawal. Other withdrawals differ in kind: a lawyer who learns that conduct the lawyer believed lawful is criminal or fraudulent may not keep assisting it, and withdrawal “may be required.”³ The grounds in paragraph (b) leave the choice to the lawyer, and paragraph (c) is what lets a tribunal overrule that choice.

The tribunal's say is broad. One opinion applying RPC 1.16 describes withdrawal as “entirely within the discretion of the court” and adds that a court “may refuse to allow withdrawal despite a showing of good cause.”⁴ A lawyer who shows good cause has reached the courthouse door, and the court decides whether the door opens.

The same opinion points to what guides that discretion. It cites a New Jersey decision, Jacobs, for the proposition that withdrawal “depends upon such considerations as proximity of the trial and possibility for the client to obtain other representation.”⁵ The two considerations measure different risks. A close trial date leaves a successor little time to prepare, and a client who cannot find another lawyer may be left with none. When both risks are high, the court has strong reason to refuse leave; when both are low, it has little.

The court's refusal applies both considerations: the trial date is close, and the client cannot replace the lawyer in time. The satisfied ground changes nothing, because paragraph (c) operates “notwithstanding good cause for terminating the representation.”⁶ Move the trial to seven months away and let the client hire a new lawyer within a week, and the same considerations favor leave.

A federal court granted leave in the dispute involving the plaintiff 24-7, and its reasoning shows the same considerations at work. The court granted the Hardy law group's motion to withdraw and directed 24-7 to find replacement counsel, first within thirty days and then, after granting an extension, by May 9, 2014.⁷ 24-7 responded with a “request to vacate” the decision.⁸ The court disagreed. It reasoned that it would be inappropriate to compel an attorney to continue representing “an apparently adverse client” where withdrawal would neither cause undue delay in the proceedings nor prejudice the client. It denied 24-7's demand to void the motion and extended the deadline for securing counsel to September 30, 2014.⁹

Three features of the ruling stand out. The court asked about delay in the proceedings and prejudice to the client, the considerations that decided whether leave was proper. It addressed 24-7's objection and still refused to undo the withdrawal, so a client's opposition counts as one input and carries no veto. And it extended the deadline for replacement counsel twice, so the grant came with time for the client to find another lawyer. Nothing in the excerpts describes a trial date, so the decision shows the standard producing leave and not refusal. Its wording still implies the other result: a court that grants leave because withdrawal would cause neither undue delay nor prejudice keeps the option of withholding leave when either is present, and the first opinion states that option outright.¹⁰

Paragraph (c) bites only where a tribunal, or in some versions a rule, stands ready to require continuation. A lawyer advising on a transaction, with nothing filed and no rule requiring continuation, gives a court no occasion to issue an order, so that lawyer may leave once a ground is satisfied.¹¹ A lawyer who has appeared in a lawsuit stands differently: in 24-7's case the law group asked the court for leave, and the court ruled.¹² The lawyer's duties in leaving remain either way, and the sections that follow take them up.

The provision travels under different letters and wording. Another state's Rule 4-1.16(e) “recognizes that notwithstanding good cause for terminating representation of a client, a lawyer is obliged to continue representation if so ordered by a tribunal.”¹³ The version quoted above adds a second trigger, “when required to do so by rule,” so in a state with that text a court rule can require continuation without any individual order.¹⁴ Identify the provision by what it says, and check your jurisdiction's text before relying on its letter.

The step students most often skip is the last. A student who finds a ground and concludes that the lawyer may withdraw has answered only the first question; in a pending case the better conclusion is that the lawyer may ask to leave and the tribunal decides. The harm-free ground shows why the second inquiry cannot fold into the first. By its terms that ground asks only whether withdrawal can be accomplished “without material adverse effect on the interests of the client,”¹⁵ while the court's inquiry reaches delay in the proceedings as well as prejudice to the client.¹⁶ A departure that is harmless to the client can still draw a refusal if it would unduly delay the case. Once leave is granted, or when no tribunal is involved, the lawyer's duties in leaving take over.