Attorney’s representation: why client was against withdraw attorney from his case

The motion should be denied because when retained in a legal proceeding, an attorney required representing the client until its conclusion. See Marine Midland Tr. Co. of Mohawk Valley v. Penberthy, DeIorio & Rayhill, 60 Misc.2d 11, 13, 301 N.Y.S.2d 221, 224 (Sup. Ct. Oneida County 1969). Under ABA Model Rule 1.16(b), a lawyer can withdraw from an engagement without cause only if it will not result in a material adverse effect on the client's interests. In this particular case, withdrawal will produce harm to the client.

New York’s Rules of Professional Conduct set forth when withdrawal is required and permitted. When retained in a legal proceeding, an attorney required to represent the client until its conclusion. Marine Midland Tr. Co. of Mohawk Valley v. Penberthy, DeIorio & Rayhill, 60 Misc.2d 11, 13, 301 N.Y.S.2d 221, 224 (Sup. Ct. Oneida County 1969). An attorney can only terminate the attorney-client relationship upon good cause and reasonable notice. Willis v. Holder, 43 A.D.3d 1441, 1441, 842 N.Y.S.2d 841, 842 (4th Dep’t 2007); Mason v. MTA New York City Transit, 38 A.D.3d 258, 832 N.Y.S.2d 153, 154 (1st Dep’t 2007).

Pursuant to New York’s Rules of Professional Conduct (“Rules”), an attorney must withdraw from representing a client when: (1) the attorney knows or reasonably should know that the representation will result in a violation of the Rules or of law; (2) the attorney’s physical or mental condition materially impairs the representation; (3) the attorney is discharged by the client; or (4) the attorney knows or reasonably should know that the client is “bringing the legal action, conducting the defense, or asserting a position in the matter, or is otherwise having steps taken,” to harass or maliciously injure. N.Y. Comp. Codes R. & Regs. Tit. 22, §1200, Rule 1.16(b).

An attorney may withdraw from representing a client when: (1) withdrawal will have no material adverse effect on the client’s interests; (2) the client persists in a course of action involving the attorney’s services the attorney reasonably believes is criminal or fraudulent; (3) the client has used the attorney to perpetrate a crime or fraud; (4) the client insists on a course of action with which the attorney has a fundamental disagreement; (5) the client disregards an agreement or obligation for expenses or fees; (6) the client insists on a frivolous claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification or reversal of existing law; (7) the client fails to cooperate in the representation or renders the representation unreasonably difficult; (8) the attorney's inability to work with co-counsel indicates that the best interest of the client will be served by withdrawal; (9) the attorney's mental or physical condition renders it difficult to carry out representation effectively; (10) the client knowingly and freely assents to termination; or (11) the client insists that the attorney pursue a course of conduct which is illegal or prohibited by the Rules. N.Y. Comp. Codes R. & Regs. Tit. 22, §1200, Rule 1.16(c). If a tribunal requires permission for withdrawal, an attorney may not withdraw from the attorney-client relationship without permission. N.Y. Comp. Codes R. & Regs. Tit. 22, §1200, Rule 1.16(d).

An attorney of record may be changed by the filing of Consent to Change Attorney, signed by the client. CPLR §321(b)(1). However, if the client does not consent and good and sufficient cause exists, an attorney may withdraw upon motion to the Court and notice to the client. CPLR §321(b)(2); see In re Alicia EE., 72 A.D.3d 1155, 1156, 899 N.Y.S.2d 380, 381 (3rd Dep’t 2010); see also Williams v. Lewis, 258 A.D.2d 974, 974, 685 N.Y.S.2d 382, 382 (4th Dep’t 1999). The decision lies within the sole discretion of the Court and will not be overturned absent a showing of improvident exercise of discretion. See McDonald v. Shore, 100 A.D.3d 602, 603, 953 N.Y.S.2d 650, 651 (2nd Dep’t 2012). Notice to the client should be reasonable. See McKelvey v. Oltmann, 16 A.D.2d 957, 957, 229 N.Y.S.2d 814, 816 (2nd Dep’t 1962).

In the instant matter, the undersigned disagrees with Counsel, as he will be substantially and materially prejudiced if Counsel is permitted to withdraw. It is doubtful the undersigned will be able to retain new counsel at this stage in the litigation and considering his personal burdened circumstances. Although trial has not been scheduled and discovery is not complete, this litigation has been ongoing since 2015. This is a complex case that will require substantial resources to prosecute. The undersigned does not have the resources to fund the litigation. He acknowledges the value of the claim is not enough to pay for the necessary litigation expenses to pursue the case. Given this situation, the undersigned will not be able to find new counsel to represent her.

Further, Counsel represents other defendants in this litigation. Given the experience acquired throughout the course of this litigation, Counsel is or should be knowledgeable regarding the relevant facts, documents, expert testimony, and legal issues in the case. It would take replacement counsel a significant amount of time to become familiar with the case. Other courts have denied motions to withdraw on similar grounds. See Haines, 814 F. Supp. Case 1:17-cv-03495-RBK-JS Document 12 Filed 08/15/18 Page 5 of 13 Page ID: 45 6 at 425 (denying motion to withdraw in part because counsel was involved in multiple similar cases against the same defendants, thus counsel was “uniquely aware of the facts, documents, expert testimony, litigation strategy, legal issues and legal authority”); Cuadra v. Univision Communs., Inc., C.A. No. 09-4946 (JLL), 2012 U.S. Dist. LEXIS 48431, at *29 (D.N.J. Apr. 4, 2012) (denying motion to withdraw in part because case had been ongoing for three years and counsel was “uniquely aware of the facts, documents, and legal issues”).

Moreover, this litigation is too complex for the undersigned to pursue pro se. “In cases where withdrawal would significantly impair a party’s ability to maintain the action, the court has not permitted counsel to withdraw.” Rusinow, 920 F. Supp. at 72 (citing Haines, 814 F. Supp. at 425; Kriegsman v. Kriegsman, 150 N.J. Super. 474, 479-80 (App. Div. 1977)). Here, the undersigned would be unable to maintain her arguments against plaintiff because it is unlikely he will be able to find replacement counsel and her arguments are too complex to pursue pro se. Both the parties and the Court would face significant delay and burden if the undersigned were forced to proceed pro se. See Cuadra, 2012 U.S. Dist. LEXIS 48431, (denying motion to withdraw in part because the parties and the court would face “unmanageable delays and burden” if plaintiff were forced to find replacement counsel or proceed pro se).

The Motion to Relieve as Counsel, as a fact, would lead to a violation of a legal nature, as it violates the New York Rules of Professional Conduct, in particular stating:

“A lawyer should seek to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject. The New York courts have established a procedure for resolution of fee disputes through arbitration and the lawyer must comply with the procedure when it is mandatory. Even when it is voluntary, the lawyer should conscientiously consider submitting to it”.