1 When Do You Move to Withdraw as Appointed Counsel?

Mary Jane Cook, Assistant Appellate Defender

August 2, 2013
I.
Prevention
a.
The best way to avoid a Motion to Withdraw (and the
accompanying Difficult Client) is to keep in regular
communication with the client. A lot of times, these situations
can be avoided but sometimes, despite our best efforts, the
client insists that you withdraw from his or her case.
b.It is rule that there are some clients who were put here to
test our patience and our senses of perspective and humor. If
the rule is that we attempt to deal with them with patience,
perspective, and humor, the greater good is served and your
place in heaven is assured.
c. If it cant be done, it cant be helped. Absent an EXPLICIT
WRITTEN DEMAND that you withdraw, however, a motion to
withdraw will be appropriate ONLY when there is a
complete breakdown of the attorney-client relationship.
1.In other words, you cannot simply move to withdraw just
because your client is difficult or obnoxious, unless said client
has expressly written that he wants you to withdraw. If he has
not told you in writing to withdraw, then you continue your
communication with that client, and with zealous advocacy.
II.Types of Withdrawal Situations
a. Attorney-Client Relationship is Completely Broken
(Rare)
i.

You cannot establish or maintain an attorneyclient relationship. Where the Attorney-Client

relationship is not difficultit is impossible. For
example, the client is specifically threatening you
or your loved ones with harm and you find the
threats genuinely unsettling, or he is so
consistently personally offensive that he has
gotten under your skin and inside your head.
Whether or not the client wants new counsel, you

want to withdraw, not because you dislike the

client, find him offensive, or have serious
conflicts, but because it has become impossible
to communicate with him. The attorney-client
relationship has completely broken down from
your point of view. This should be a very rare
situation.
B. The Difficult Client (More Common)
i. The typical situation is that the clients demand that
you withdraw is a function of completely unreasonable
and unrealistic expectations, nave and ill-informed
legal theories, or absurd proposed courses of actions.
The clients want you to argue X, or file Y, or do Z, when
X, Y and Z, AT BEST will weaken the overall
presentation of the clients case to the reviewing court.
The client may be unpleasant or obnoxious, but that is
not the problem. The problem is that you cannot do
what the client wants and fulfill your duty of zealous
representation, or that what the client wants is simply
impossible, and you cannot make the client understand.
The client may suffer from mental illness or may just be
mean. You believe that the clients desire that you be
discharged will not serve the goal of getting the client
relief from the trial court judgment and could hurt him or
her, if only because substitution of counsel will delay a
resolution of the appeal. In this situation, the Motion to
Withdraw will be a plain, vanilla motion but will not
necessarily advocate that the court relieve you of the
representation.
C. Appointed Counsel Has become Seriously Ill or Some
other Emergency
i. If something occurs, a medical emergency, family
issue, etc., and it becomes obvious that you will not be
able to continue your case load for the foreseeable
future, call judge and let him know immediately. He will
assist you in the withdrawal process and getting new
counsel re-appointed.
III.Request to withdraw
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a. Sometimes, the request to withdraw is pretty clear. I

want you to withdraw from my case. Sometimes, it
is less clear.
i. When the request is clear, first try to re-establish
communication. If the request is: If you dont write
back, I dont want you to be my attorney anymore,
then you should obviously write back.
ii. If the client says I want a different lawyer because
it is obvious that you are working against me or
leaves a voicemail stating You are fired. Stop
sending me things. I told you before on the voice
mail that you are fired, when you need to get more
clarification.
iii.But DO NOT MOVE TO WITHDRAW until you
have written your client again, you explain
withdrawal (that you must have express, written
permission in order to file the motion), that the Court
of appeals may not grant the motion, in which case,
the two of you are stuck together (but phrase it a
little more delicately).
b. Your response letter, whether the request is clear or
not, should tell the client that you need the written
permission, that because you were appointed by
court order he cannot simply hire you, and that the
Court of Appeals may not grant the motion. Also
remind the client that while he or she has the right to
counsel on appeal, he or she does not have the right
to counsel of their choice.
c. If the client is nearby, and if you think that the client
would be willing to meet with you, then you can also
arrange a prison visit. (See Handout on Prison
Visits.)
IV. Next Step Client gain puts in Writing that he wants
you to Withdraw
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a. If, after you take appropriate steps to try to

address the clients concerns, the client is
steadfast in his intent to discharge you, and he
has PUT THE REQUEST IN WRITING, you are
ethically bound to move to withdraw.
i.
See RPC 1.16(a)(3) V.Confidential information
in the Motion to Withdraw.
b. You must very narrowly tailor any disclosure of
confidential communications you make in the
motion to withdraw. You can disclose such
information only to the extent that the disclosure
is necessary to accomplish your ethical
responsibility. See generally
Rule 1.6.
i.Your ethical responsibility may be to end the
relationship (i.e., Section II (a.) above)
ii.Your ethical responsibility may be to make a plain,
vanilla motion to withdraw, but not necessarily to
advocate that the court relieve you of the
representation (i.e. Section II (b.) above).
c. You should limit disclosure only to what is
necessary to the specific situation. There are
creative methods of suggesting that the client is
difficult or paranoid without actually writing it.
Remember, you still owe your client a continuing
duty of loyalty even after the relationship ends.
d. While this seems an obvious point of correct
ethical and professional behavior, there is
certainly a temptation to take a shot at a client
who has repeatedly told you that you would be
more effective taking orders at the local Wendys.
But dont.

VI.Different Types of Motions

a. Client who is difficult and Mentally Ill
i.If the client is mentally ill and is making demands
clearly rooted in dementia or paranoia, you might
simply make the motion, recount the number of
times you have written to the client and visited him,
cite Rule 1.16(b)(4), Rule 1.14 (Client with
Diminished Capacity), and
Rule .1 (Meritorious Claims and Contentions), and
attach a copy of these rules to the motion.
1.The implicit message to the court is, My client is
mentally ill and is asking me to get out because I
wont take irrational actions, but withdrawal would
not be in his best interest.
b.Client who is Difficult (And Mean or Hateful
rude or Obnoxious)
i.

If the client is consistently ill-informed and

persistent in ignoring the accurate information
you provide, insisting that you raise a clearly
unsupported claim or simply a claim that will
impair the effectiveness of the brief, you might
cite Rule 1.16(a)(3), Rule 3.1 (Meritorious
Claims and Contentions), and Jones v.
Barnes, 463 U.S. 745, 77 L.Ed. 2d 987 (1983),
which holds that appellate counsel is not
obligated to raise even a non-frivolous claim
the client demands be raised if counsel
determines that the overall effectiveness of the
representation will be enhanced by not raising
the claim. (Hopefully, you cited this case in a
previous letter to your client.)
1.The message to the court is, My
unsophisticated, obnoxious, and ill-informed
client is asking me to run issues that will hurt
him, and withdrawal is not in his best interest.

c. Situations Where relationship Has

Completely Broken Down (Rare Situation in
Section II (a.) above)
i.

If you are actually seeking to terminate

the representation, and the client will not
consent to disclosure of specific
information, you might recount your
contacts with the client, state that you
believe you cannot continue to provide
effective assistance of counsel, cite Rule
1.4(a)(5) and/or Rule 1.16(a)(2). You
also should explicitly tell the court you
need to get out because youve tried to
establish an attorney-client relationship,
but have found it impossible to do so.

1.In this motion in which you really are trying

to terminate the representation, please include
in the motion a request that the Office of the
Appellate Defender be re-appointed should the
motion be granted.
2. Again, this is a RARE situation, ne that
many of us will NEVER encounter.
VII.Motion Decided
a. Motion Denied
i. If the appropriate court denies the motion,
you continue as counsel of record. You are
obligated to communicate with the client as if
the motion to withdraw had never been filed,
and to continue to represent him zealously.
b. Motion Granted
i. If the court grants the motion, you are out. In
that case, please document the circumstances
of the withdrawal by attaching a copy of your
withdrawal motion and the resulting order to
your final fee application.
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VIII. Miscellaneous
a. If you arent sure what type of situation you
are in, or still just uncertain, it is
appropriate to call ??? and ask for
guidance

The following are sample letters. These documents are being provided as examples of the
provisions other practitioners have used in this type of letter. Persons using these forms should
not rely on the contents of these forms as evidence of the current state of the law since the law
may have changed. The practitioner must first and foremost rely on his or her own
professional judgment and due diligence in determining what to include or exclude in a letter.
Termination Letter -Firing Client 1 of 2
[DATE]

[CLIENT NAME]
[ADDRESS]
RE:
Dear [Client]:
As we discussed in our meeting on (date), it appears that our relationship has reached a point
where we can no longer work together effectively. Unfortunately, these situations occur on
occasion and it becomes in the best interest of the client and the lawyer for the client to find
new representation.
I encourage you to contact new counsel to represent you in this matter as soon as possible.
Pursuant to our fee agreement, we will be sending you our final bill for legal services. It is our
understanding from our meeting on (date) that you will be taking care of this bill within _____
weeks.
We are pleased to have had the opportunity to represent you on this matter. I regret that we
could not continue to represent you. We have filed a Motion to Withdraw with the court. A
copy is enclosed. I will send you a copy of the Order as soon as we receive the signed Order.
If you have any questions, comments or criticisms about our case, our bill, or our
representation of you, please contact me and I will be happy to sit down and discuss the matter
with you.
Very truly yours,
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The firm

The Partner

Termination Letter -Firing Client 2 of 2

[DATE]

[CLIENT NAME]
[ADDRESS]
RE:
Dear [Client]:
As we discussed in our recent meeting, it appears that our relationship has reached a point
where we can no longer work together effectively. Unfortunately, these situations occur on
occasion and it becomes in the best interest of the client and the lawyer for the client to find
new representation.
[This will confirm that you have decided to retain [new counsel] as your new lawyer. My staff
is in the process of photocopying your file to be immediately transferred to [new counsel], and
I would be happy to meet with [new counsel], at no cost to you, to bring her up to speed on
the case so she can effectively represent you.]
[I encourage you to contact new counsel to represent you in the matter as soon as possible.
You may want to contact [list names of referrals], to see if they can represent you.]
Pursuant to our fee agreement, we will be sending you our final bill for legal services. It is our
understanding from our meeting that you will be taking care of this bill within two weeks.
We are pleased to have had the opportunity to represent you on this matter. I regret that we
could not continue to represent you. We have filed a [Substitution of Counsel/Motion to
Withdraw] with the court. A copy is enclosed. I will send you a copy of the Order as soon as
we receive the signed Order.
If you have any questions, comments or criticisms about the case, our bill or our representation
of you, please contact me and I will be happy to sit down and discuss the matter with you.
Sincerely,

The Lawyer
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NOTE: This letter is not a substitute for and should only supplement the notice
requirements of C.R.C.P. 121, Section 1-1.

How to Withdraw From a Case

By Marc S. Stern
In any professional endeavor there comes a time to leave. Recognizing that moment is
especially important in the attorney-client relationship. Knowing how to leaveand how to
leave without creating ethical and financial problems for yourselfis even more important.
There are a variety of financial, personal, and professional reasons for withdrawing from a
case. I believe that lack of payment is not automatically one of these; from time to time,
attorneys should work for free to ensure that the system functions. Unless the client is willfully
refusing to pay, an indication of a more deep-rooted problem, I believe that the attorney has an
obligation, ethical or moral, to finish out the representation.

SAMPLE WITHDRAWAL LETTER

Dear Client:
Over the past several weeks I have been reevaluating our attorney-client relationship. It is
apparent that we are not functioning as a team. It appears that my advice has been ignored, and
you have not provided the information necessary to your proper representation. You have
promised ____ and have not been able to devote the time/resources/etc. necessary to your
proper representation.
We at ____ try to do the best possible job for our clients, and this is a two-way street. We
expect our clients to fulfill their end of the bargain. When this is impossible, it is best that we
terminate our attorney-client relationship. It is our intention to terminate our relationship
effective on ____. Until that time we will continue to represent you. We will respond to
motions and appear as your counsel in court. We will not, however, initiate any new actions
except as we reasonably believe necessary to preserve the status quo.
Trial in this case is scheduled for ____. In addition, there are the following deadlines: ____.
The statute of limitations for your claims against ____ will toll on ____. The statute of
limitation provides that actions need to be started before it runs. This means that you must file
your lawsuit before that date.
Our decision to terminate the relationship is not negotiable and under no circumstances will we
continue to represent you after ____. If you have not secured new counsel by that date, you
will need to represent yourself. You will need to file a written appearance with the court, and
you will need to respond to opposing counsel and appear for hearings.

We have (have not) given opposing counsel permission to contact you directly. As you know,
the Rules of Professional Conduct preclude an attorney from contacting a represented client
without permission.
Once again, thank you for this opportunity to be of service. We are sorry that it did not work
out. In the event that we can be of further service, please consider us.
Sincerely yours,
[Withdrawing firm]
In the original retainer agreement you should have set forth the reasons for an eventual
withdrawal and the bases for terminating the relationship. It is in the initial agreement that
expectations are created and the basics of the attorney-client relationship set forth.
There are two types of withdrawals: the normal withdrawal and the noisy withdrawal. A
noisy withdrawal is done when the client wants to commit or have the lawyer commit an
ethical breach. In this case the lawyer cannot ethically continue to represent the client. At the
same time, the withdrawal cannot disclose attorney-client privileged information. The manner
and scope of such an action are well beyond the scope of this article. However, you need to
know that it exists, and in order to protect your license, you may need to use it.
Having decided to leave, it is important to do so in such a manner that you dont have future
problems with the client, the court, or the ethical authorities in your jurisdiction. First, you
must determine what the court rules require you to do to withdraw from the case. Some courts
will allow withdrawal after notice. Other courts require permission of the court (i.e., a court
order authorizing withdrawal). Whatever the procedure, follow it.
If this is not a matter involving litigation, the court rules are not relevant but should be
consulted in any event. Remember, the attorney-client relationship is a fiduciary one, and the
clients interest comes ahead of yours. Make sure that you do not damage the clients case by
the manner of the withdrawal.
You need to represent the client until the withdrawal is effective. If there is a motion pending
before the withdrawal is effective, you need to respond to the motion. You need to appear at
the motion and preserve your clients interest, even if you are not being paid, even if you cant
stand the client. The exception is if the client intends to preserve perjured testimony or expects
you to participate in a fraud on the court. (See the noisy withdrawal, above.) The matter may
get continued by a call to opposing counsel, other lawyers involved, or the appropriate
individuals.
Once you have decided to leave, you have a new client: you. Your purpose now is to get out of
the case with the least exposure possible. It is to leave the client with good feelings, or at least
with no vendetta against you. This means that you should not call the client a deadbeat or
harass the client about fees, documents, etc. At this point, all communication should be in
writingletter or e-mail, preferably both. If there is an oral communication, confirm it in
writing. Remember, everything that you do will be part of the record. You may hate the client.
You may think that the client took advantage of you. It does not matter. If it will make you feel
better, write a letter and explain it. Then burn or shred the letter. If you feel a need to vent, do
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so in private. Doing so in a public place will do you no good and can destroy relationships, not
necessarily with the client.
Prior to terminating the relationship you need to go through the file and figure out whats
there. Are there embarrassing notes, are there notations to missed deadlines, difficulties with or
other issues involving the client that would best remain unclear? Be extremely careful before
you remove anything. It is probably okay to remove your note that the client is a buffoon.
Anything germane to the case is a different matter. If it memorializes something that happened
or that will help the next counsel understand what happened, it needs to stay in. Remember
that the client owns the file, and you will be required to turn it over when the representation
ends. (One option is to keep a client file and your own working file.) You also need to make
sure that documents from other clients have not inadvertently made it into this clients file.
If there is even the possibility of future problems with the client, make a copy, electronic or
paper, of everything that is in the file. You may rest assured that the clients new counsel will
review everything in the file for the purpose of (1) deciding if there is a claim against you for
malpractice, (2) determining whether your fees were reasonable, or (3) determining what you
did and what needs to be done. Consequently, it is important to document all of these things.
If there are unpaid fees, many states give the lawyer a possessory lien on the documents in the
attorneys possession. One would think that this would provide leverage in getting paid.
However, many ethics opinions provide that withholding documents necessary for the client or
his or her new lawyer to continue the representation will result in an ethical problem. Be very
careful before holding onto files for the purpose of coercing payment. Is the fee really worth
defending yourself against an ethics claim? On the other hand, if you have original documents,
providing a copy should be sufficient to assist in the presentation of the case. Still, before
taking this position, check with your jurisdictions ethics authorities.
When you are preparing to leave the case, make sure that the client understands that there are
deadlines he or she must meet. At the minimum, include all items that need to be completed. If
you are firing the client before a statute of limitation runs, make sure that client knows when it
will run and what that means. If there are other pending deadlines, make the client aware of
them in writing. Remember, at this stage you are demonstrating how professional you are, and
more importantly, you are making a record.
Finally, remember that even after you and the client have parted company, the attorney-client
relationship remains. You are required to maintain client confidences.

Here are three things to know about withdrawing from a case:

1. There are times when you must terminate the attorney-client relationship
Whether you want to or not, and regardless of what Dr. Phil advises, there are situations when
you must break up with your client. These situations are outlined in Rule 1.16(a) of the Indiana
Rules of Professional Conduct. These include times when the representation will result in a
11

violation of the Rules of Professional Conduct or other law, the lawyers physical or mental
condition materially impairs the lawyers ability to represent the client or the lawyer is
discharged. For example, if your representation of the client will result in your assisting a
client in fraud, then under Rule 1.16(a)(1), you must withdraw from the case.
2. When withdrawing, do not make the clients situation worse
Rule 1.16(b)(1) states that a lawyer may withdraw from representing a client if withdrawal
can be accomplished without material adverse effect on the interest of the client. What does
that mean? That means you likely will not be able to withdraw from a case that is set for trial in
a week. Furthermore, it also means that under Rule 1.6, you shall not reveal confidential
information relating to the case.
If the reason for withdrawing is that your client has not paid you, state in your motion to
withdraw that the client has not fulfilled his obligations to the undersigned. Do not say, The
client lied to me about his willingness to pay my fees and I am upside down to the tune of
$30,000. If the reason for withdrawing is that, pursuant to Rule 1.16(b)(4), the client insists
upon taking action that the lawyer considers repugnant or with which the lawyer has a
fundamental disagreement, place in your motion something like there has been a breakdown
in the attorney-client relationship. It likely would have a materially adverse effect on the client
to state something along the lines of, My client insists that I present a conspiracy theory to the
court, accuse the judge of criminal activity and otherwise impugn the impartiality of the
tribunal.
Withdrawal-motion drafting tips
Downey offers suggestions for drafting motions to withdraw. Be wary of including too much
detail in the motion, he says, to avoid revealing sensitive or preju dicial information to
opposing counsel or, unnecessarily, to the court.
But, he continues, have your grounds documented as well as possible in your file. "It's often
OK to file a motion, appear, and say to the court I'll get into de tails if the court wishes, but I
can't do it with opposing counsel here."
One diplomatic but effective wording for a motion premised on sensitive grounds, Chief Judge
James Holder-man of the federal district court for the Northern District of Illinois suggests,
might be "I have an ethical obligation not to represent this client." If the court permits or
directs, Downey says, you can then reveal to the court in chambers only as much as is
necessary for the court to understand the need for you to withdraw.
"If you're going to discharge someone for nonpayment, you need to make sure you've given the
client a clear warning." To that end, he says, "Have a letter in your file that says you haven't
paid me in so many days, this amount is due, we need to work out a payment plan and I need
to receive at least partial payment in 30 days or I'm going to withdraw."
If the client still hasn't paid you two months later, he says, you can show the court that you
made it very clear what the client needed to do. "The judge is much more likely to say, 'You've
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done what you needed to do for me to understand that this is a reasonable request that should
be granted.'"
Trouble is almost guaranteed to arise, Downey says, when the lawyer continues to represent
the client despite nonpayment or other bad behavior and moves to withdraw late in the case or
without sufficient warning to the client. "Courts want to see that you've worked with your
clients and given them fair warning before moving to withdraw."
Adds ISBA member TJ Thurston, who recently started Lawyers1st, a coaching and mentoring
company for lawyers in his home state of New Jersey, "Make sure you have proof of serving
the client with the motion to dismiss. Most judges won't grant the motion unless you show up
with the executed 'green card' from the Postal Service."
Making sure clients are protected
Downey acknowledges that it's not unusual, even when lawyers have valid and compelling
grounds for withdrawal stated in RPC 1.16(a) or (b) and even when they have filed their
motions in a timely fashion, for judges to decline to allow them to withdraw until their clients
obtain new counsel. A judge may, for example, set the case over for 30 days for a status
hearing to see if the client has obtained new counsel.
Holderman explains why he may not allow a lawyer to withdraw immediately. "I try to keep
the lawyer in the case until another lawyer enters an appearance, so that we can minimize any
adverse effect to the client." If the client doesn't appear for the hearing on the motion and no
new lawyer has entered an appearance, Holderman will typically enter an order requiring the
client to appear in court the following week along with the lawyer seeking to withdraw. At that
time, if the client does not appear after the lawyer has attempted to secure the client's
appearance, Holderman usually will grant the motion to withdraw.
If the client does show up at the second appearance, Holderman uses that occasion as an
opportunity to delve into the reasons for withdrawal, if necessary, and to exhort the client to
retain new counsel posthaste. He also explores the actions of the lawyer seeking leave to
withdraw to ascertain whether the lawyer has done everything possible to minimize any
negative consequences to the client from not having a lawyer. Under some circumstances he
may ask the withdrawing lawyer whether he or she will cooperate with a new lawyer retained
by the client, whether to emphasize to the client through the lawyer's affirmative response that
the client's representation will not suffer or to emphasize to the lawyer that such cooperation is
necessary regardless of a less than cordial relationship with the soon-to-be former client.
"[T]ake a deep breath"
Even after a lawyer has received leave to withdraw from a case, his or her responsibilities may
not be over. ARDC senior counsel Peter Rotskoff comments on the interplay of RPC 1.16(a)
(1), requiring the lawyer to withdraw where continued representation would result in a
violation of the Rules of Professional Conduct, and RPC 3.3, Candor Toward the Tribunal.
Comments 10, 11, and 15, Rotskoff notes, explain that "Sometimes withdrawal is not enough.
There are circumstances where the lawyer must take remedial action to comply with RPC 3.3."
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Those circumstances include the lawyer's realizing that the former client has testified falsely. If
remonstrating confidentially with the client, for example, does not elicit cooperation, the
lawyer may have to disclose information that would otherwise be protected under RPC 1.6,
governing the duty of lawyer-client confidentiality. "The duty of can dor toward the tribunal
trumps everything else," says Rotskoff.
"Withdrawals can be hard," Downey recognizes. "You've really got to think it through and be
careful. It's a situation where you shouldn't do it by yourself." Talk to someone who's not
connected with the matter and isn't emotionally involved about whether to withdraw and how
to couch your motion, Downey recommends.
"Your partner may not be the best wise counsel in this circumstance," he says, suggesting that a
friend outside of your law firm may be a better choice. "Ask them whether it's appropriate. Run
the motion by them."
Whatever happens, Downey says, remain professional, even in the face of invective from your
client before the judge and spectators in a crowded motion call. "Grab a table, hold tight, take
a deep breath, let it pass. And then point out to the judge that the client has just demonstrated
why you must be given leave to withdraw."

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