Reprinted with permission from CEB.
There are many grounds for both mandatory and permissive withdrawal under the California Rules of Professional Conduct. When it’s time to withdraw from representation in a civil case, the attorney should send the client a letter like one of these.
When the withdrawal is with the client’s consent: Start by reminding the client of your agreement that it would be best for another attorney to handle the case. Then briefly explain the process:
I have prepared and enclosed a standard “substitution of attorneys” form for your review, signature, and return. Please send the signed form back to me within the next _ _[specify number of days, e.g., 10]_ _ days, and I will send you a copy that reflects all required signatures and notices to opposing counsel. Because you have not advised me otherwise, I have replaced my name with yours as attorney of record on this form.
Then state whether there are any pending filing deadlines, discovery matters, hearings, trials, or conferences in the case. Remind the client that your withdrawal at this time shouldn’t prejudice the client’s legal rights in any way. Ask the client to let you know if he or she has hired a new attorney so that you can revise the form to reflect the name of the new attorney.
When the withdrawal is without the client’s consent: Start by explaining why your withdrawal is appropriate. Specify the basis under California Rules of Professional Conduct 1.16, e.g.:
You have consistently requested that I assert claims in your case that I do not believe are warranted under existing law and that cannot be supported by a good faith argument for an extension, modification, or reversal of existing law.
- Urge the client to immediately seek other counsel.
- Attach a copy of the motion you filed with the court to be relieved as counsel.
- State whether, apart from this motion, there are any pending filing deadlines, discovery matters, hearings, trials, or conferences in the case.
- Tell the client that your withdrawal at this time shouldn’t prejudice his or her legal rights in any way.
In both types of withdrawal letters, make sure to offer the return of all of the papers and other property that the client gave to you in connection with the case, at the client’s request. If you have unearned fees, include something like this:
I will be refunding $_ _[specify amount of unearned fees, other than true retainer fees]_ _ to you within the next _ _[specify number of days, e.g., 30]_ _ days, an amount that constitutes unearned attorney fees that you paid in advance for my services that are not part of a true retainer fee.
In addition to a letter to the client, you also have to give notice to the opposing party (or counsel, if that party is represented). (Code Civ. Proc., § 285.) In most civil cases in which no court order to substitute an attorney is involved, serve and file a special form, Substitution of Attorney—Civil (Without Court Order) (Judicial Council Form MC-050). When a court order permitting withdrawal is needed, you’ll need to use additional Judicial Council motion and order forms.
When it comes to communicating with clients, you don’t have to start from scratch—check out the many sample letters to clients for all stages of representation in CEB’s California Client Communications Manual: Sample Letters and Forms. On attorney withdrawal procedures and grounds, turn to CEB’s California Civil Procedure Before Trial §§ 4.19-4.35.