§4.5 - Withdrawal in A Matter Before A Tribunal

• Jurisdiction: Washington

§4.5 WITHDRAWAL IN A MATTER BEFORE A TRIBUNAL

(1) Generally

This section discusses the general mechanics of withdrawal as distinct from the client perjury problem discussed above.

During a pending matter, a lawyer seeking to withdraw or facing discharge by a client is often required to obtain permission from the court prior to withdrawal. RPC 1.16(c) directs the lawyer to comply with any "applicable law" related to notice or permission of the court when withdrawing from a pending matter. In order to prevent a client from delaying proceedings by repeatedly discharging or refusing counsel, a tribunal may refuse the discharge or withdrawal or force the client to proceed pro se.

As noted in RPC 1.16 cmt. 3, difficulties may arise when withdrawal from a case pending before a tribunal is prompted by the client's demand that the lawyer engage in unprofessional conduct. In such a circumstance, comment 3 suggests that "[t]he lawyer's statement [to the court] that professional considerations require termination of the representation ordinarily should be accepted as sufficient." The WSBA issued an advisory opinion clarifying the permissible degree and sequence of disclosure of confidential client information. WSBA Advisory Op. 201701 (2017). If the "professional considerations" language does not suffice, a lawyer may offer public disclosure if the client consents or a disclosure under seal and in camera. Failing that, the opinion provides a sequence of disclosure depending on the appellate status of the action. Any attorney facing these issues is encouraged to review the opinion thoroughly.

(2) In Washington state court

(a) Under the Superior Court Civil Rules

If an attorney has appeared, Washington Superior Court Civil Rule (CR) 71 permits withdrawal in three manners: by court order; by notice; and by withdrawal and substitution. See also 3 Washington Civil Procedure Deskbook ch. 71 (Wash. St. Bar Assoc. 2d ed. 2014).

Withdrawal by order is required for any court-appointed attorney. The appointed attorney must move the court for an order and give the client notice of the motion and the hearing.

Withdrawal by notice requires the attorney to file and serve a Notice of Intent to Withdraw on his or her client and all other relevant parties. Such notice must specify the date of withdrawal, which can be

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no less than 10 days after service of the notice. CR 71(c)(2) requires the Notice of Intent to Withdraw to be served on the represented parties (i.e., the client)prior to service on other parties. Unless a party objects prior to the specified date, the withdrawal will be effective. If a timely written objection is served, withdrawal may be obtained only by order of the court. A notice that states it is "effective immediately" failed to satisfy the 10-day requirement. In re Disciplinary Proceeding Against Pfefer, 182 Wn.2d 716, 730 344 P.3d 1200 (2015)

Finally, an attorney may withdraw if a new attorney is substituted by filing and serving a Notice of Withdrawal and Substitution, identifying and signed by both the withdrawing and substituting attorneys.

The Washington Court of Appeals has noted that "[n]othing in CR 71 'defines the circumstances under which a withdrawal might be denied by the court.' CR 71(a). Nor is there a Washington case on point. Thus, we...