Attorneys who seek to withdraw as counsel must do so appropriately; otherwise, they risk remaining on the case for longer than they wish—or, worse, they risk malpractice exposure. A letter to the court does not suffice. Neither does an affidavit from the client advising they wish to “release” their attorney from representation.
According to New York’s Civil Practice Law and Rules (N.Y. C.P.L.R.), the safest way for an attorney wishing to withdraw as counsel is by motion to the court, with notice to the other side, as well as to his or her client. Another way to withdraw is by consent to change attorney, but the consent must be signed by both the withdrawing attorney and the client. Attorneys who have only been hired for limited purposes cannot simply consider themselves withdrawn based on the retainer between themselves and the client. The attorney appearing for limited purposes must file a limited-scope appearance in addition to a self-represented appearance by the client. The limited-scope appearance must be signed by the attorney and must specify the limited purpose for which the attorney is appearing. Additionally, at the completion of the scope of representation, the attorney must file a completion of scope appearance, which shall then constitute the attorney’s formal withdrawal from the proceeding.
Failure to withdraw in a manner as specified by the N.Y. C.P.L.R. can expose an attorney to a malpractice claim, as seen in Eichengrun v. Panasci. In Eichengrun, the attorney representing a client in a foreclosure received notice, after a short-lived bankruptcy for which the client had hired a separate bankruptcy attorney, that the foreclosure sale was allowed to proceed. The attorney failed to inform the client about it, and the client later sued the attorney for malpractice. The New York State Appellate Division for the Third Department found that the attorney continued to represent the client because he had failed to withdraw as counsel in a manner compliant with the N.Y. C.P.L.R. requirements.
Another way that attorneys can expose themselves to malpractice is by not filing an answer with affirmative defenses when they file a limited-scope appearance. In HSBC Bank v. Mohammed, the New York Appellate Division for the Second Department held that a limited-scope appearance was an appearance nonetheless, and failure to assert the affirmative defense of lack of personal jurisdiction in an answer at the time of the appearance was waiver of such a defense.
While educating attorneys on how to formally withdraw from counsel can be as easy as a CLE training or an article in a legal publication, the consequences of ineffective attorney withdrawal should also be explained to the clients, although this may be harder to accomplish. Clients should know that simply “firing” an attorney may expose them to binding settlements by that attorney or may nullify any document signed by them in the belief that they are proceeding pro se when the requirements of N.Y. C.P.L.R. 321 have not been followed, whether that be a settlement or a discontinuance.
Although attorneys are hired to help litigants uncomplicate issues that are sometimes beyond a layperson’s comprehension, diligent litigators should ensure that they do not lend truth to the adage “everything can be complicated by an attorney” by failing, of all things, to properly record their withdrawal from a case.
