A primer on motions to withdraw and attorney liens.

• Author: Reineke, Beth Gilmore

In a perfect world, we win every case, the client is always happy, and we always get paid for the work we have done. In reality, we don't win every case, the client is not always happy, and we don't always get paid for the work we have done, or at least not without some preplanning on our part. Sometimes it is necessary to withdraw from a case and to file a claim of lien in order to increase the chance of being paid. This article is designed as a primer on motions to withdraw and attorneys' charging liens, retaining liens, and judgment liens. Hopefully, you live in a perfect world and you won't need this information. If not, this article will give a good jumping-off point and some helpful practice tips.

Motions to Withdraw

All motions to withdraw must meet the procedural requirements of Fla. R. Jud. Admin. 2.060. According to subsection (j) of Rule 2.060, an attorney must file a motion setting out the reasons for withdrawing and the name and address of the client. The motion must be set for hearing, and the notice and the motion must be served on the client and opposing counsel.

Practice Tip: Add the client to the certificate of service and include a paragraph in your motion setting out each party's name and address and stating specifically that you are serving the motion on your client and the opposing party in compliance with Fla. R. Jud. Admin. 2.060.

The acceptable reasons for withdrawal are found in Fla. R. Prof. Conduct 4-1.16. Rule 4-1.16(a) of the Rules Regulating The Florida Bar sets out several situations where withdrawal is mandatory. Withdrawal is mandatory when the client discharges you, when you are too sick to continue, or when continued representation will result in a violation of the Rules of Professional Conduct. Subsection (b) of Rule 4-1.16 is permissive and states that "a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client." Subsection (b) also sets out six additional situations when a lawyer may withdraw from representation presumably even when his or her withdrawal may adversely affect the client's interests.

Practice Tip: While it appears from a wording of Rule 4-1.16 that the motion to withdraw does not need to allege a basis for the withdrawal unless withdrawal will have material adverse effect on the client's interests, Rule 2.060 requires the attorney to set out his or her reasons for withdrawal. Additionally, if the attorney is requesting a charging lien or may decide to do so at a later date, the better practice is to specifically state a reason for withdrawing which tracks the language of one of the subsections of Rule 4-1.16. This is particularly true if you are working under a contingency contract. In Faro v. Romani, 641 So. 2d 69, 71 (Fla. 1994), the Florida Supreme Court held that when an "attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation." This rule is tempered by the court's further holding that "if the client's conduct makes the attorney's continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule," the withdrawing attorney may still be entitled to a fee. Id.

Practice Tip: If you have a contingency fee contract and you are withdrawing because the client has discharged you, you should consider stating this fact in your motion and as a finding of fact in the order of withdrawal. Under these circumstances, withdrawal is mandatory under Florida Bar Rule 4-1.16(a), "not of your own volition," and you may still be entitled to a fee if the client ultimately recovers. The same suggestions would apply if you are withdrawing because of client conduct.

Motions for Substitution of Counsel

Substitution of counsel is controlled by Fla. R. Jud. Admin. 2.060(i), and requires court permission and the client's consent. Typically, both attorneys and the client sign motions for substitution of counsel, and the court enters an order without hearing.

Practice Tip: Rule 2.060(i) permits the court to condition the substitution of counsel, and presumably the notice of appearance of new counsel after withdrawal, on the payment of or posting of security for the substituted attorney's fee and...