Preparing for a divorce or family law trial can be stressful. Learning that your attorney wants to withdraw shortly before trial can make the situation feel overwhelming.

An attorney’s withdrawal does not end the case. It also does not necessarily cancel the trial, extend discovery deadlines, or excuse a party from complying with existing court orders. The client must act promptly to understand what happened, obtain the case file, identify approaching deadlines, and determine whether new counsel can be retained.

Can an Attorney Simply Quit a Case?

Once an attorney has formally entered an appearance in a pending case, the attorney generally cannot withdraw merely by telling the client that the representation has ended. Depending on the jurisdiction and stage of the case, the attorney may need to file a motion and obtain the judge’s permission.

The American Bar Association’s Model Rule 1.16 addresses the circumstances under which an attorney must or may withdraw. State ethics rules and local court procedures ultimately control, however, and they can differ from the ABA model rules.

A judge may consider how close the case is to trial, whether withdrawal would materially prejudice the client, whether replacement counsel can reasonably be obtained, and whether withdrawal would disrupt the court’s schedule. The ABA has explained that, in litigation, the court may retain discretion to approve or deny withdrawal.

Until withdrawal is authorized, the attorney may remain counsel of record and may still have professional obligations in the case.

Why Would a Family Law Attorney Withdraw?

There are numerous reasons an attorney might seek to withdraw. Some involve the attorney-client relationship, while others may arise from professional or ethical requirements.

Possible reasons can include:

• A substantial breakdown in communication;
• The client’s failure to pay fees under the engagement agreement;
• Repeated refusal to follow legal advice or cooperate with case preparation;
• Failure to provide documents or truthful information;
• A conflict of interest;
• The client asking the attorney to take an unlawful or unethical action;
• A fundamental disagreement about litigation strategy;
• The attorney’s illness, retirement, or inability to continue practicing; or
• Conduct making continued representation unreasonably difficult.

A motion to withdraw may not disclose every detail. Attorneys remain subject to confidentiality obligations and may be unable to publicly explain the complete reason for the request. A client should therefore avoid assuming that a short or vaguely worded motion tells the entire story.

Before matters reach this point, clients who are having difficulty obtaining information may find it helpful to review what to do when a lawyer is not responding. Addressing communication or billing problems early may prevent the relationship from deteriorating further.

The Case and Its Deadlines Usually Continue

One of the most dangerous assumptions is that the case will stop while the client searches for another lawyer.

Unless the court changes its orders, existing deadlines may remain in effect. The client may still need to answer discovery, disclose witnesses and exhibits, attend depositions, participate in mediation, appear at pretrial conferences, and prepare for trial.

A party who does not have an attorney is generally considered self-represented until another attorney enters an appearance. The court may continue sending notices to the party directly, and the party remains responsible for complying with applicable rules and orders.

The client should immediately obtain and review:

• The order allowing the attorney to withdraw;
• The current trial setting;
• All upcoming hearings and conferences;
• Discovery and disclosure deadlines;
• Pending motions;
• Outstanding discovery requests;
• Witness and exhibit deadlines;
• Mediation requirements;
• Existing temporary orders; and
• Contact information for opposing counsel and the court clerk.

This is also a good time to create a written case chronology. An organized timeline can help replacement counsel understand what has occurred without having to reconstruct the entire case from scattered documents. A prior article explains how a chronology can help a family law attorney.

Obtain the Complete Case File

The departing attorney should take reasonably practicable steps to protect the client’s interests during the transition. ABA Model Rule 1.16 identifies steps such as providing reasonable notice, allowing time to obtain other counsel, surrendering papers and property to which the client is entitled, and refunding unearned advance fees.

The exact scope of the file and whether an attorney may retain any materials based on unpaid fees can depend on state law. The client should nevertheless request the file promptly, preferably in an organized electronic format.

The file may include pleadings, correspondence, discovery, financial records, deposition transcripts, expert reports, exhibits, settlement proposals, court orders, legal research, and the attorney’s calendar of upcoming deadlines.

The client should also request a current billing statement and an accounting of any money remaining in trust. Questions concerning unpaid balances, potential fee liens, expert invoices, or transcript charges should be addressed before they interfere with transferring the case.

Finding Replacement Counsel May Take Time

Not every family law attorney will accept a case shortly before trial. New counsel must check for conflicts, evaluate the case, determine whether sufficient preparation time remains, review the financial arrangements, and decide whether the matter fits within the attorney’s schedule.

The client should be candid about the trial date and the reason prior counsel withdrew. Concealing problems will only make it more difficult for replacement counsel to evaluate the case and prepare effectively.

It may be helpful to provide prospective counsel with:

• The operative pleadings;
• The most recent court orders;
• The trial setting;
• A list of pending deadlines;
• A concise procedural history;
• Key financial or custody documents;
• Discovery responses;
• Expert reports; and
• The motion and order concerning withdrawal.

Individuals who need assistance locating counsel can consult the ABA’s directory of state and local lawyer-referral resources. Those who may qualify for civil legal aid can search for a local program through the Legal Services Corporation.

Will the Court Continue the Trial?

A continuance is not automatic merely because an attorney withdrew or a party has not yet retained replacement counsel.

A judge may consider when the attorney-client problem arose, whether the party acted diligently, how many continuances have already been granted, the age of the case, prejudice to the opposing party, the availability of witnesses, and the court’s schedule.

If additional time is needed, a motion to continue may have to be filed promptly. Waiting until the day of trial can make the request less persuasive. Even when both parties agree to postpone the case, the judge may decide that the trial should proceed.

For more information about why settings sometimes change, read why a family law trial may be continued.

Stay Focused and Act Promptly

An attorney’s withdrawal shortly before trial is a serious development, but panic will not help. The most important steps are to determine exactly what the court has ordered, secure the complete file, identify every approaching deadline, and begin contacting qualified replacement counsel immediately.

A client who had already been considering a change may also want to review when it may be time to obtain a new family law attorney. Changing attorneys can create additional expense and delay, but continuing with a relationship that has irreparably broken down may also carry substantial risks.

Every jurisdiction has different rules governing withdrawal, continuances, attorney liens, and client files. Individuals facing this situation should obtain advice promptly based on the rules and circumstances of their particular case.

If you need representation in a divorce or family law matter, Stange Law Firm, PC can help. You can visit Family Law Headquarters for additional information or call 855-805-0595 to schedule a confidential consultation.