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A motion to withdraw is a legal instrument that basically acts as a petition asking a court to remove a lawsuit from its docket or to authorize the departure of a particular attorney from a case. In some cases it can also be used to change a plea once it’s been entered, or to cancel an action so that it can be re-filed in a different sort of court. These sorts of motions are most common in the English system of law practiced in the U.K., the U.S., and Canada, but depending on the circumstances they may also be found in other places. They are generally considered to be pretty simple motions, and most courts handle them on a regular basis almost as a matter or routine.
Whenever a party to a lawsuit wants the court to do something specific, he typically needs to make a formal written request to the court. In most places this is called a “motion.” A motion to withdraw, then, is basically a way to ask a court to make a formal order allowing a party to withdraw, or take back, something that was previously done or previously filed. Different courts have different rules, but in most cases these sorts of motions usually include supporting documents, including citations to the rules or laws that authorize the motion and a written statement or brief explaining the reasons for the motion and why it should be granted.
Most of these sorts of filings are considered “routine,” and most are discharged by the courts almost automatically. If the court requires a hearing on the motion, though, both parties will usually submit oral arguments regarding it, and may also be invited to submit additional documents including affidavits and exhibits. After considering the arguments and the evidence, the court will issue a ruling, and one of the attorneys involved typically prepares an order that provides documentation of the court's decision.
One of the most common reasons for filing this sort of motion is to withdraw a lawsuit. This often happens if the plaintiff, the party who initiated the legal action, changes his or her mind about following through. If the parties decide to settle the matter outside of court the action will similarly need to be withdrawn.
If a lawyer or attorney no longer wishes to continue representing certain clients he or she will also usually need to file a motion to withdraw representation. Sometimes this is due to a conflict of interest in the dispute, for instance if the lawyer is related to the judge or has a business relationship with someone on the other side of the action, though it can also happen if the lawyer and the clients simply aren’t getting along or seeing eye-to-eye. This is often the case when the lawyer and clients do not agree regarding legal strategy, particularly if the lawyer feels like his or her best advice is being ignored.
If the client consents, this sort of filing is usually entered and issued almost automatically. Things get more complicated when the client wants to keep the lawyer. In these circumstances the court typically provides the client with an opportunity to explain why the attorney should remain on the case. Favorable rulings are often challenging because the attorney must be careful to provide sufficient information to the court to satisfy the motion without breaching client confidentiality rules.
These sorts of motions can also be filed by lawyers who are court-appointed, often as public defenders or government lawyers who are on staff with the courts rather than being hired directly by clients. Withdrawal motions can be more challenging in these circumstances and usually hinge on the validity of the case. If a court-appointed attorney has reason to believe that a case is frivolous and without merit, he may motion the court for permission to withdraw appearance. Simply disagreeing with an assigned client or disbelieving his or her version of events isn’t usually sufficient. If the court disagrees with the attorney’s reasoning he or she may be ordered to proceed despite desires otherwise.
In many criminal cases a defendant may plead guilty to a crime in exchange for something that will help him, such as being charged with a lesser offense or the promise of a lighter sentence. Sometimes, however, a defendant will receive the court's permission to use a tool known as a “conditional plea,” which reserves his right to appeal certain issues before the plea is entered. If a defendant is allowed to use a conditional plea, he may ask to withdraw his guilty or no contest plea and instead go to trial. If the defendant loses the appeal, the guilty plea typically is enforced.
This sort of motion can also sometimes be used to change the venue of an action so that the outcome is more likely to be favorable to a certain party. Bankruptcy cases are a good example. In bankruptcy actions, the party filing for bankruptcy may have the opportunity to have a jury trial rather than have the matter decided by a bankruptcy judge. This is usually done by filing a motion to withdraw reference, which requests that the matter be transferred from bankruptcy court to a court where it will be tried in front of a jury. As with other motions, the parties typically must show cause regarding why the matter should be transferred.
You don't have to serve motions. Simply certified mailing the motion to the client is sufficient in most states. Usually you know if your attorney is dropping you.
A motion to withdraw as counsel can be done when an attorney has done his job and what he was paid for, but the case could be ongoing or open and the attorney is not being paid to continue with it. It doesn't always have to be a frivolous lawsuit.
I did this in a case where I was representing myself and needed an attorney for one hearing, then continued on my own. He just sent the motion to me via regular mail.
On a motion to withdraw representation, does this make the attorney a party to the motion and prevent him from personally serving the "motion to withdraw representation"? Is this a separate action within the main court action? When this is so, what legal points make it so?