There are times when an attorney must withdraw as the attorney of record in a civil case prior to its conclusion. This can occur at the client’s request or because the attorney has decided it is necessary. However, this decision doesn’t just allow an attorney to return the file to the client and step away from the case. The process to withdraw, including the necessary pleadings, is laid out by statute and is mandatory.

THE MOTION TO WITHDRAW

A motion to withdraw can be filed at any time in a case. A written motion must be filed, and a proposed order of withdrawal must accompany the motion. The court may only grant a motion to withdraw without replacement counsel if the body of the motion contains the name and address of the client.[1] The motion should be signed by the client, acknowledging their knowledge of the motion. If the client does not sign the motion, the attorney is required to certify:

• The client has knowledge of the attorney’s request to withdraw as attorney of record or
• The attorney could not find the client after making a good-faith effort to do so.

The statute requires the attorney seeking to withdraw to notify the court if the case is set for a motion docket, pretrial conference or trial.[2] To ensure compliance with the statute, the motion should contain a statement as to any future case setting.

The motion to withdraw must be served on the client and every attorney of record in the case. A certificate of service should be attached to the motion to prove compliance with the service requirement. Once filed, the motion should be set for hearing, and the client and all attorneys of record should be notified of the date and time of the hearing.

THE ORDER

It is important a client understands that a case does not stop when an attorney withdraws. Therefore, the statute requires that the order notify the client that they have a 30-day window to file an entry of appearance to represent themselves pro se or have an attorney file an entry of appearance on their behalf. The order must state that if no entry of appearance is filed within 30 days from the date of the order permitting withdrawal, the unrepresented noncorporate party is deemed representing themselves pro se. The order shall also notify the client that failure to prosecute or defend the pending case may result in the case being dismissed without prejudice or a default judgment taken against the client.[3] An additional reminder about these obligations should be included in the closing letter to the client.

ETHICAL RESPONSIBILITIES

A client can discharge counsel at any time for any cause. If an attorney is discharged by a client, the attorney shall withdraw immediately. The Oklahoma Rules of Professional Conduct provide other guidance for when an attorney may withdraw from a case. An attorney is required to withdraw if a client demands or continues to demand that the lawyer take action that is in violation of the law or the rules. An attorney can also withdraw from a case if the client does not pay for services as previously agreed upon.[4]

The rules emphasize that, even when withdrawing from a case, the attorney must take reasonable steps to protect the client’s interests. The rules give specific examples of such steps, such as “giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expenses that has not been earned or incurred.”[5]

Once an attorney withdraws, the client has the right to receive a refund for any funds still held by the attorney that have not been earned or used for legitimate expenses. The Court of Civil Appeals has stated that an attorney can only charge for services they actually provided and that those charges must be reasonable.[6] It is important for the attorney to promptly send a final bill detailing the retainer paid and how the funds were used. Any remaining portion of the retainer should be returned to the client.

TIMING FOR TRIAL/HEARING SUBSEQUENT TO WITHDRAWAL

The statute provides 30 days for a litigant to retain new counsel or be deemed as representing themselves.[7] However, the appellate court has found that the statute does not require a trial or hearing to be postponed until that time frame has expired. Further, a pro se litigant can waive any such right by agreeing to a hearing date during the 30-day window.[8] As the Oklahoma Rules of Professional Conduct require a withdrawing attorney to continue to protect the client’s interest, the attorney should caution the client not to agree to a hearing set prior to retaining new counsel.

CONCLUSION

Withdrawing as counsel by following the statutory requirements not only protects the interests of the client and the integrity of the legal system but also ensures that litigants, attorneys and the court are all informed about the status of the case and what will happen once the motion to withdraw is granted.

 

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PROPOSED LETTER TO CLIENT

RE: Motion to Withdraw

 

Dear [Client Name]:

 

Enclosed is a copy of the Court Order allowing me to withdraw as your attorney. I will no longer be responsible for representing your interests in this matter. You should retain new counsel immediately or prepare to represent yourself. You have thirty (30) days from [enter date order was signed] for an attorney to file an Entry of Appearance, or you will be deemed as representing yourself. If you plan to represent yourself, notify the Court Clerk and Opposing Counsel so that you will receive pleadings and correspondence related to the case.

A hearing is set in your case on [date]. You and/or your new attorney will need to be present at that hearing. Failure to attend future hearings or participate in your case could result in default orders against you or dismissal of your case.

I have enclosed all the original documents from your file. If you believe there are additional documents in my possession, please let me know immediately so that I may search for them before I place my copy of your file in storage. Finally, I have enclosed the final statement for my work in this matter. If you have any questions about this statement, please contact my office at [insert phone number or contact information].

 

Sincerely,

 

[Attorney’s Signature]

 

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ABOUT THE AUTHOR

Jimmy Oliver has more than 10 years of experience in the areas of family law, juvenile law, guardianship and probate. He has served on the OBA Board of Governors and the Professional Responsibility Commission.

 

 

 

 

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ENDNOTES

[1] O.S. §2005.2 (C).

[2] Id.

[3] Id.

[4] Oklahoma Rules of Professional Conduct 1.16, Comments 7 and 8.

[5] Oklahoma Rules of Professional Conduct 1.16 (d).

[6] Wright v. Arnold, 1994 OK CIV APP 26, 877 P.2d 616.

[7] O.S. §2005.2 (C).

[8] Hilfiger v. Hilfiger, 2023 OK CIV APP 15, 530 P.3d 879.