When the job offer from a Wall Street law firm came, Audrey left South Carolina for the bright lights of the big city. Audrey and her part­ ners removed her name from the signature blocks for all of her litiga­ tion cases, and the cases continued .

Just as Audrey was settling into her second year in Manhattan, she was served with pleadings in a malpractice action that was based on the handling of a discovery matter after Audrey had moved . She was uneasy about the idea of her name being mentioned in the same breath as the word "malprac­tice," but her role in the case was small-her name was one of four lawyers on the signature block of a complaint-and,   furthermore,   she was not the client's attorney when the alleged malpractice had occurred. She could not be liable for their negligence. Or could she?

Similar to a marriage, when lawyers and clients part ways, they cannot simply pack up and leave. Instead, they are bound to each other in an attorney-client rela­ tionship until withdrawing as counsel after clear notice, and if the lawyer has made an appear­ ance in court on behalf of the client, she also must get court approval. Taking a few steps could have avoided this nasty situation.

When may a lawyer withdraw as counsel  after entering into an attorney-client relationship?

First, the general rule is that a lawyer in an attorney-client rela­ tionship impliedly stipulates to carry a case to termination. Graham u. Town of Loris, 272 S.C. 442, 452, 248 S.E.2d 594, 599 (1978) .

Despite this rule, a lawyer in South Carolina must withdraw in three situations: (1) if the represen­ tation will result in violation of the ethics rules or other law, (2) if the lawyer's  physical  or mental  condi­ tion  materially  impairs  his  ability to represent the client, or (3) if the lawyer is discharged. See S.C. R. App. P. 407 (Rule of Professional Conduct 1.16(a)); see also Local Civ. Rule 83.!.08, RDE Rule IV(B) (D.S.c.) (adopting the  South Carolina Supreme Court's Rules of Professional  Conduct).

In addition, a lawyer may seek to withdraw if (1) withdrawal can be accomplished without a materi­ al adverse effect on the client's interests, (2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent , (3) the client has used the lawyer's services to perpetrate a crime or fraud, (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamen­ tal disagreement, (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services or payment and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled, or (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client, or  (7)  other  good  cause for withdrawal  exists. S.C. R. App. P. 407 (Rule 1.16(b)).

Note that-unlike some jurisdic­tions-South Carolina allows some lawyers  to  seek withdrawal  for unpaid bills. See, e.g., Pederson & Scott, P.C. u. Braswell  Serus. Grp., Inc., No. 2001-CP-10-4530, 2002 WL 34129822 (S.C. Ct. Com. Pl. May 2, 2002) (trial court order granting law firm's motion  for summary judgment  on client's breach of contract claim because lawyer's withdrawal by motion was proper based on irrec­ oncilable conflicts between  the lawyers and client and because client's refusal to pay fees caused a financial burden on the lawyer) . Granting the motion is discretionary with the judge. Id.; see also S.C. Bar Ethics Adv. Op. # 82-24 (opining that if client deliberately disregards obli­ gation to pay when required to do so under the agreement, despite having the ability to pay, lawyer may seek to withdraw from representation).

What steps must you take to withdraw as counsel?

When Audrey left South Carolina for her new job in New York, all she did was remove her name from the signature block­ the equivalent of attempting a divorce by moving out of the mari­ tal home, reverting to her maiden name, and plunging into the dating pool. Withdrawing as counsel is easier than getting a divorce, but still requires a mandatory process: (1) give clear-preferably written­ notice to the clients that Audrey was no longer going to be repre­ senting and, if possible, get their consent, preferably in writing, and (2)obtain approval by the court after filing a motion to withdraw. Unless and until the court grants the motion to withdraw, a lawyer shall continue  representation notwithstanding good cause for terminating the representation. S.C. R. App. P. 407 (Rule 1.16(c)).

1. Give your client clear written notice that you are withdrawing as  counsel.

This year, in an attorney mal­ practice  case, the  South  Carolina Court  of Appeals  addressed  whether effective  notice  of withdrawal  had been given to the client. See Tuten v. joel, 410 S.C. 104, 763 S.E.2d 54 (Ct. App. 2014). In that case, an out-of­ state lawyer (Mr. Joel) opened an office in South Carolina and hired an associate (Ms. Glover) who was licensed in this state. Thereafter, Joel closed his South Carolina office and gave his cases to Ms. Glover, who  sent a letter to client Tuten stating that Joel was "retiring from his South Carolina office" and advising that he would still receive attorneys' fees. After Tuten's case was dismissed for failure to prosecute, she sued both Joel and Glover for malpractice.

The Court of Appeals ruled that Joel had taken no steps to end the attorney-client relationship, that Joel himself never communicated with Ms. Tuten, and Ms. Glover's let­ ter did not effectively convey that Joel would no longer be her lawyer. The court held that, at a minimum, Joel should have communicated to his client, in advance, that he intended to withdraw. Id. at 114, 763 S.E.2d at 60; see also In re Lorenz, 408 S.C. 324, 759 S.E.2d (2014) (disbar­ ring real estate lawyer for, among other things, closing office and leaving the state without notice to clients, in violation of Rule 1.16).

The Tuten court cited a Montana case for the proposition that a lawyer remains in an attorney-client relationship even after joining another law firm. See Krutzfeldt Ranch, LLC v. Pinnacle Bank, 272 P.3d 635, 642 (Mont. "2012). The Krutzfeldt case highlights  another  casualty  of failing to withdraw  as counsel: dis­ qualification because of conflicts. In that case, one of the plaintiff's lawyers (who had minimal involve­ ment in the case) went to work for the law firm representing  the defen­ dant;  after changing law firms, the lawyer informed his client of the move  and stated that he would be screened from the  case  at that point. However, the plaintiff moved to disqualify the defendant's law finn because  the  attorney-client relationship  had  not  ended,  causing a direct conflict and prejudice to the client. The Montana  Supreme Court agreed  that the  relationship  contin­ ued  without  effective withdrawal, and that the  screen was  established too late to avoid the law firm's dis­ qualification . Id. at 645; see also Ex Parte Strom, 343 S.C. 257, 539 S.E.2d 699 (2000) (addressing withdrawal of counsel when client sought lawyer's disqualification from representing an adverse party in a different case) .

Once a lawyer becomes  counsel of record in a lawsuit, the criteria for withdrawal become  stricter. See Tuten, 410 S.C. at 110 n .3, 763 S.E .2d at 57 n .3 (addressing withdrawal before a lawsuit was filed). In that situation, the withdrawing attorney must provide w1itten notice of a change of attorney, served on all parties. If the lawyer cannot locate the client to give notice, the court may require notice by publication  to the last known  address  and also by newspaper publication. See Hulse u. Coastal Limousine, No. 04-CP-10-4711, 2004 WL 5213421 (S.C. Ct. Com.Pl. July 9, 2004) (trial court order).

In Tuten the notice was unclear because the associate's letter said only that Joel was "retiring from his South Carolina office" instead of stating he was withdrawing as coun­ sel and would no longer be repre­ senting the client. To avoid a he-said, she-said dispute about the effective­ness of the withdrawal notice, write a clear, concise letter that unam­ biguously includes the following:

  • State that you are withdrawing as counsel.
  • Give  the  reasons  for withdrawal, even if the client has fired you .
  • Unless the client will remain rep­ resented by other counsel of record or the client has chosen new counsel to replace you, rec­ ommend that the client get new counsel (and, for a corporation, or other entity that cannot proceed prose, inform of the requirement of counsel).
  • Provide a reasonable amount of time for the client to obtain new counsel and, if necessary, seek a stay in the court for this purpose.
  • Arrange to return the client's file.
  • Provide a final status report.
  • Refund any unused retainers and fees and expenses that were paid in advance.
  • Have the client acknowledge receipt of the letter and, hopeful­ly,  give  consent.

2. If you have become counsel of record in a lawsuit, the court must approve withdrawal by either con­ sent of the parties or a showing of good cause for withdrawal.

When a lawyer has made a for­mal appearance in a federal or state court proceeding, the with­ drawing lawyer must obtain court approval by filing a motion to with­ draw. See Local Civ. Rule 83.I.07 (D.S.C.); S.C. R. Civ. P. 11(b), (c); S.C. R. App.  Pro. 407  (Rule  1.16(b)); see also Culbertson v. Clemens, 322 S.C. 20, 24, 471 S.E.2d 163, 165 (1996) (holding that "[a] formal appearance may consist of filing a pleading").

In other words, a lawyer who has  entered  an  appearance  in  court "continues  to  appear for all purpos­ es until the judgment  is satisfied, unless  he  retires  in the  meantime by leave of court, and so long as his name continues to appear there, the adverse party has the right to treat him as the authorized attorney ." Culbertson, 322 S.C. at 24, 471 S.E.2d at 165 (emphasis in original) (citations omitted). In criminal matters, even in cases in which the lawyer was hired only for trial, lawyers must also serve and file the notice of appeal before his representation is over. See In re Anonymous Member of the Bar, 303 S.C. 306, 307, 400 S.E.2d 483, 483 (1991); see also In re Carter, 400 S.C. 170, 177-78, 733 S.E.2d 897, 901 (2012) (finding ethical violations for failure until the day of a hearing to give notice to client, court, and opposing counsel of withdrawal and failure to return client's file) .

Motions to withdraw as counsel are also subject to the duty to con­ sult and confer with opposing counsel prior to filing the motion under Local Civil Rule 7.02 (federal court) and Rule 11(a) (state court).

{A) Federal  court withdrawal

The South Carolina federal dis­ trict court recently amended local rule 83.I.07, which regulates with­ drawal of counsel, to clarify the cor­ rect procedure in two distinct situa­ tions, when the client will remain represented and when he will not:

Withdrawal of Appearance. No attorney  whose   appearance  has been  entered  may withdraw  his or her representation  or be relieved as counsel except with leave of court on motion filed pursuant to this rule.

  1. If the withdrawal will not leave the party  unrepresented, the  motion  shall state whether it is with the consent of (1) the party and (2) those attomey(s) who will remain as counsel for the party. If the required con­ sents have not been  obtained, moving counsel shall show good cause why the relief should be granted and shall give notice to the party as required under subpart (B)(3). If new counsel are to be substi­ tuted, they must  enter an appearance before  the motion to withdraw will be granted.
  2. If the withdrawal will leave the party unrepresented, the motion shall:
    1. Include the mailing address and telephone number for the party.
    2. If the party is a corpora­ tion ,  partnership,  associa­ tion, other legal entity, or any person proceeding in a representative capacity, state that the party has been informed that (a) it may not proceed without counsel, (b) its counsel must be admit­ ted in this district, and (c) it may be held in default or have its claims dismissed if it fails to obtain replacement counsel within a reasonable time.
    3. Be filed along with either a consent to withdrawal signed by the party or a certification that the party has been pro­ vided a copy of the motion and an explanation of the party's right to object to with­ drawal. The explanation shall inform the party of the date the motion was filed and state that any response must