FLORIDA NEWS ARCHIVE - LAWYER ETHICS, Withdrawal
Court erred in dismissing case where party was not notified that his lawyers had withdrawn and was not provided copy of withdrawal order. [Added 3/7/13]
Plaintiff’s action originally was filed by a California lawyer who was “unauthorized to practice in Florida but who had appropriate Florida counsel to assist.” Florida counsel became frustrated with the slow pace of the case and filed a motion to withdraw. Counsel for both sides stipulated to the withdrawal “stipulating that the Florida attorney would be replaced and a third amended complaint would be filed within thirty days of the order approving the stipulation. It was also agreed that if the complaint was not timely filed, the action would be dismissed with prejudice.”
A copy of the withdrawal order was sent to California counsel’s outdated address and so did not arrive until 5 days before the 30-day period had run. California counsel motion for an extension of time (accompanied by a proposed third amended complaint) was opposed by defense counsel, who moved to strike it. “The court struck the application, finding it was ‘filed by a non-Florida lawyer in violation of the rules and this Court’s order and is thus a nullity.’ The court then dismissed the action with prejudice.” Plaintiff appealed.
The Fifth DCA reversed, citing Torrey v. Leesburg Regional Medical Center, 769 So.2d 1040 (Fla. 2001), for the proposition that Plaintiff was not at fault and so the case should not have been dismissed. The appeals court noted 2 problems with the dismissal: “First, the record does not reflect that [Plaintiff] was ever notified by either of his attorneys about the withdrawal. Second, there is no indication that the court’s order permitting the withdrawal was provided to [Plaintiff].” Brunoehler v. Burger, __ So.3d __, 38 Fla.L.Weekly D489 (Fla. 5th DCA, No. 5D11-3194, 3/1/2013), 2013 WL 757631.
Fifth DCA indicates that lawyer’s motion to withdraw should be granted where attorney-client relationship has become “adversarial.” [Added 11/13/12]
Lawyer moved to withdraw after disagreements with his clients over the scope of the representation and the fee arrangements grew into an “adversarial” relationship. The trial court orally denied the motion, but “delayed in reducing its oral denial of [Lawyer]’s original motion for over a month.” While awaiting the written order, Lawyer filed an amended motion to withdraw that included a supporting affidavit. The court deferred ruling pending an evidentiary hearing. In the meantime, Lawyer petitioned the Fifth DCA for a writ of certiorari.
The appellate court denied the petition as premature, pointing out that “there remains judicial labor to be performed” regarding the motion. The court, however, appeared to suggest that the motion be granted. After quoting from the Florida Supreme Court’s decision in Fisher v. State, 248 So.2d 479 (Fla. 1971), regarding when withdrawal should be permitted in civil cases, the court indicated that the standard had been met in the instant case: “At the time the trial court denied [Lawyer]’s first motion to withdraw, the [clients] had received due notice of [Lawyer]’s intent to withdraw from the case. No trial date had been scheduled and there was ample time for the [clients] to obtain substitute counsel. Consequently, at that time it appears there was no reason for the trial court to believe that allowing [Lawyer] to withdraw would interfere with its orderly functioning.”
The court concluded by stressing the personal nature of the attorney-client relationship, stating that it requires trust and confidence on the part of each party. Bowin v. Molyneaux, 100 So.3d 1197 (Fla. 5th DCA, No. 5D12-2589, 11/9/2012).
Criminal conviction reversed because court abused its discretion in denying motion to substitute counsel and for short continuance. [Added 12/20/11] -- Alvarez v. State, 75 So.3d 420 (Fla. 4th DCA 2011).
Florida Supreme Court amends Rules of Judicial Administration regarding withdrawal motions, pro hac vice admissions, electronic filing, and electronic testimony. [Added 10/4/11]
The Florida Supreme Court amended the Rules of Judicial Administration effective January 1, 2012. A sunEthics.com summary of the changes appears below.
Motions to withdraw. Amended Rule 2.505(f) requires that a motion to withdraw filed by a party's counsel include the client's last known telephone number and email address. The Court stated in its opinion that the amendment would "make it easier for the court [in which the withdrawal motion was filed] to maintain contact with a party who may have to proceed pro se after withdrawal of the attorney."
Pro hac vice admission. Amended Rule 2.510(a) requires an attorney licensed in another state seeking pro hac vice admission in a Florida court "must make application in each court in which a case is filed even if a lower tribunal granted a motion to appear in the same case." However, the amended rule goes on to specify that "[a]ppearances at different levels of the court system in the same case shall be deemed 1 appearance for the purposes of determining whether a foreign attorney has made more than 3 appearances within a 365-day period."
Electronic filing. New Rule 2.525(g) requires that "[a]ll documents transmitted in any electronic form under this rule must comply with the accessibility requirements of Florida Rule of Judicial Administration 2.526." In turn, new Rule 2.526 requires that electronically-filed documents that become judicial branch records must be formatted in a manner that is accessible to persons with disabilities.
Electronic testimony. Looking toward the wider use of electronically-transmitted testimony, the Court amended Rule 2.530(d) to provide: "A county or circuit court judge, general magistrate, special magistrate, or hearing officer may allow testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule of procedure." In explaining this change, the Court stated that the amendment "will allow the various Florida Bar rules committees to consider whether their bodies of rules should be amended to allow for the use of communication equipment without the parties consent." In re: Amendments to the Florida Rules of Judicial Administration, 73 So.3d 210 (Fla. 2011).
Fifth DCA denies motion to withdraw from appellate proceeding on ground of "irreconcilable differences." [Added 9/26/11] -- Benenati v. Chase Home Finance, LLC, 70 So.3d 600 (Fla. 5th DCA 2011).
Law firm may be liable in legal malpractice action for harm to former client occurring after firm withdrew from representation. [Added 4/17/11] -- Golden Gate Homes, LC v. Levey, 59 So.3d 275 (Fla. 3d DCA 2011).
Court erred in denying motion to withdraw filed by lawyer who wasn't being paid. [Added 3/4/11] -- Roth v. Cortina, 59 So.2d 163 (Fla. 3d DCA 2011).
Court erred in denying continuance where party was unemployed and her counsel withdrew on eve of trial. [Added 12/3/10] -- Quintero v. Kenyon, 48 So.3d 808 (Fla. 3d DCA 2010).
Court erred in granting Public Defender's motion to withdraw based on alleged "excessive caseload" conflict. [Added 7/8/10] -- State v. Bowens, 39 So.3d 479 (Fla. 3d DCA 2010).
Court erred in denying motion to withdraw because Office of Criminal Conflict and Civil Regional Counsel not subject to appointment for indigent defendants in postconviction case. [Added 4/26/10] -- Office of Criminal Conflict and Civil Regional Counsel, Second District v. Smith, 33 So.3d 105 (Fla. 2d DCA 2010).
Lawyer appointed from "Involuntary Appointment List" to represent defendant in complex RICO prosecution should have been permitted to withdraw. [Added 8/18/09] -- Hagopian v. Justice Administrative Commission, 18 So.3d 625 (Fla. 2d DCA 2009).
Third DCA reverses circuit order permitting Public Defender's Office to decline representation in all future 3rd-degree felony cases. [Added 5/15/09] -- State v. Public Defender, Eleventh Judicial Circuit, 12 So.3d 798 (Fla. 3d DCA 2009).
Law firm's effort to withdraw from case in response to motion to disqualify may not remedy problem. [Added 4/2/09] -- Lewis v. Nical of Palm Beach, Inc., 10 So.3d 159 (Fla. 4th DCA 2009).
Regional Conflict Counsel has no standing to object to Public Defender's motion to withdraw from a case on conflict grounds. [Added 3/20/09] -- Johnson v. State, 6 So.3d 1262 (Fla. 4th DCA 2009).
Lawyer who withdrew from contingent fee case for health reasons may not have forfeited his right to fee. [Added 11/1/07] -- Collier v. Bohnet, 966 So.2d 1033 (Fla. 4th DCA 2007).
Defense counsel's "nodding acquaintance" with key state witness was not conflict of interest requiring counsel's withdrawal; defense counsel did not err in failing to withdraw; RPC 4-3.5(d)(4) constitutional. [Added 10/17/07] -- Kormondy v. State, 983 So.2d 418 (Fla. 2007).
Second DCA outlines procedure for lawyers to follow when withdrawing from or appearing in cases already on appeal. In re P.G., 944 So.2d 443 (Fla. 2d DCA 2006). NOTE: See also S.H. v. Department of Children and Family Services, 955 So.2d 610 (Fla. 5th DCA 2007).
Client's absence from defense counsel's ex parte disclosure to court of counsel's concerns about his ability to be effective (due to anticipated bar complaint and client perjury) violated client's due process rights. Frett v. State, 864 So.2d 577 (Fla. 2d DCA 2004).
sunEthics is produced by Tim Chinaris, and hosted by Faulkner University, Thomas Goode Jones School of Law. Please read our disclaimers. Search our site, or view previously posted summaries using our SUBJECT INDEX. © 2013