Ethics in Practice
| Publication year | 2023 |
| Citation | Vol. 38 No. 2 Pg. 0094 |
| Pages | 0094 |
PAUL MCDONALD is a shareholder and the general counsel of Bernstein Shur Sawyer & Nelson. In addition to his commercial and business litigation practice, Paul represents lawyers in ethics, risk management, and malpractice matters. He can be reached at pmcdonald@bernsteinshur.com.
Termination of the Attorney-Client Relationship Part Two: Obtaining Leave to Withdraw and Continuing Obligations to the Client
This is Part Two of a two-part discussion dealing with the ethical issues and recommended practices surrounding termination and withdrawal from an attorney-client relationship prior to conclusion of the matter. Part One included an indepth discussion of Rule of Professional Conduct 1.16, entitled "Declining or Terminating Representation,"[1] and addressed the circumstances where withdrawal is ethically mandated and those situations that permit, but do not require, withdrawal.[2]
Part Two will address the situation in which the lawyer seeks to terminate and withdraw from representing a client in a matter that involves litigation in court, an arbitration, or some other proceeding before a "tribunal."[3]
Motions To Withdraw
When Necessary
Me. R. Prof. Conduct 1.16(c) states that "a lawyer must comply with applicable law and rules requiring notice to or permission of a tribunal when terminating a representation,"[4]Both the Maine Rules of Civil Procedure and the Local Rules of the United States District Court for the District of Maine have provisions dealing with motions to withdraw from representation.[5]
Maine Rule of Civil Procedure 89 requires that a lawyer file a motion to withdraw and obtain leave of court to do so unless (i) substitute counsel simultaneously enters an appearance, (ii) there are no pending motions, and (iii) no trial date has been set, in which case the withdrawal may be made by filing and serving a notice of withdrawal on all parties and the client.[6]Local Rules 83.2 (civil rules) and157.5 (criminal rules) of the United States District Court for the District of Maine require the filing of a motion to withdraw and obtaining leave of court in all cases.[7]
Form And Content of The Motion
Neither Maine Rule of Civil Procedure 89 nor the Maine Rules of Professional Conduct address the form or content of a motion to withdraw.[8] However, Local Rule 157.5 of the Maine District Court offers some guidance. It states, in pertinent part, that:
a motion to withdraw shall set f1orth sufficient information to enable the Court to rule. Such information may be filed under seal, submitted to the Court in camera, and shall not be made part of the public record, except by order of the Court.[9]
Official Comment 3 to Rule 1.16 provides additional helpful...
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