Can a lawyer obtain a client's signed consent to withdraw at the start of the representation and later file it with the court to withdraw?

Plain-English summary

The Committee was asked about the practice of attorneys obtaining a client's consent to withdraw as a condition of being hired, then later tendering that document to the court. It concluded that an attorney should not lodge such a previously executed document with the court as an express written consent to withdrawal, and may not tender it even after motion and notice of hearing to the client and opposing counsel; going forward, obtaining a consent to withdraw in advance of an actual intent to withdraw is improper.

The opinion grounded the conclusion in the withdrawal rule and Alaska Civil Rule 81(d). A lawyer may not withdraw from a proceeding before a tribunal without its permission where court rules require permission (the opinion's quoted text states the withdrawal rule, shown in the source as "DR 2-101(A)(1)," an apparent typo for DR 2-110(A)(1)). Civil Rule 81(d)(1) allows withdrawal only for good cause on motion and notice, by substitution of ready counsel, or where the party expressly consents in open court or in writing. The opinion read the written consent under Rule 81(d)(1)(iii) as a current consent, not one obtained earlier (citing ABA Canon 44), so a prior accord on withdrawal cannot be tendered as the express written consent. The attorney and client may agree that the attorney may seek to withdraw on future contingencies, but that agreement neither functions as the current consent under (iii) nor necessarily establishes good cause under (i); the tribunal determines good cause.

The opinion also tied the practice to the duty of candor toward the tribunal, citing the candor rules (the source refers to "ABA Model Code of Professional Responsibility, Rule 3.3," along with DR 7-102(A)(3)-(5), DR 7-106(A)-(C), and EC 7-25): a lawyer must not make a false statement of material fact or law, conceal what the law requires disclosed, or offer evidence the lawyer knows is false. It made clear the opinion does not operate retroactively to advance consents already obtained, but that, in the future, the withdrawal itself must be accomplished by notice and hearing, substitution, or current consent in accord with Civil Rule 81(d).

Currency note

This opinion was issued in 1984, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. The cited civil rule may have changed. Treat this page as historical context, not current guidance. Verify against the current rules and Civil Rules before relying on any specific rule or procedure mentioned here.

Common questions

Q: Can a lawyer have a client sign a consent to withdraw at the start of the case for later use?

A: The opinion concluded that, going forward, obtaining a consent to withdraw in advance of an actual intent to withdraw is improper, and such a document may not be filed as the client's current written consent.

Q: How must a lawyer withdraw from a case before a tribunal under Alaska practice?

A: The opinion concluded withdrawal must be accomplished under Alaska Civil Rule 81(d): for good cause on motion and notice, by substitution of ready counsel, or by the client's current express consent in court or in writing.

Q: Can a lawyer and client agree the lawyer may withdraw on future contingencies?

A: The opinion concluded they may so agree, but that agreement does not itself serve as the current consent under Rule 81(d)(1)(iii), nor does it necessarily establish good cause; the tribunal decides good cause and the withdrawal must still follow Rule 81(d).

Background and rules framework

The opinion applied the former Code's withdrawal rule (the quoted text of DR 2-110(A)(1), shown in the source as "DR 2-101(A)(1)") together with Alaska Civil Rule 81(d), which sets the procedure for an attorney's withdrawal, and the candor obligations of the Code (DR 7-102(A)(3)-(5), DR 7-106, EC 7-25), subjects now treated by Model Rules 1.16 (declining or terminating representation) and 3.3 (candor toward the tribunal).

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 2-110(A)(1) (withdrawal requires the tribunal's permission; the source text reads "DR 2-101(A)(1)," an apparent typo) (cf. Model Rule 1.16)
• DR 7-102(A)(3)-(5), DR 7-106(A)-(C), EC 7-25 (candor and conduct before a tribunal) (cf. Model Rule 3.3)
• ABA Canon 44 (withdrawal)

Rules of Civil Procedure:

• Alaska Civil Rule 81(d) (procedure for withdrawal of counsel); Alaska Civil Rule 77 (service of notice)

See also

• Alaska Ethics Op. 2026-1: Disclosure When Withdrawing From Representation
• Alaska Ethics Op. 95-3: Appointed Counsel and a Client's Financial Change
• Alaska Ethics Op. 2003-3: Documents in the Client File on Termination

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/84-10.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 84-10
Consent to Withdraw Executed when Representation Undertaken.
The Committee has been asked to pass both upon the practice of
attorneys obtaining consents to withdraw as a condition of employment by a
client and their subsequent tender to the court. It is the opinion of this
Committee that an attorney should not lodge with the court such a previously
executed document without notice of hearing to his client under the guise of an
express consent in writing to the withdrawal of the attorney. Further, a lawyer
may not tender to the court such a previously executed document even
following motion and notice of hearing to his client and opposing counsel. In
the future, an attorney may not obtain a consent to withdraw in advance of an
actual intent to withdraw.
The aspects of obtaining such a consent to withdraw are delineated by
professional standards and court rules. A lawyer shall not withdraw from
employment in a proceeding before a tribunal without its permission, when
permission for withdrawal is required by court rules. See DR 2-101 (A)(1). The
procedure through which an attorney obtains the tribunal's consent to
withdraw is provided by Alaska Civil Rule 81(d), which in pertinent part
provides as follows:
(1) An attorney who has appeared for a party in an action or proceeding may be
permitted to withdraw as counsel for such party only as follows:
(i) for good cause shown, upon motion and notice of hearing served upon
the party in accordance with Rule 77; or
(ii) where the party has other counsel ready to be substituted for the
attorney who wishes to withdraw; or
(iii) where the party expressly consents in open court or in writing to the
withdrawal of his attorney.
On one hand, the attorney may withdraw without the express consent of
his client when good cause has been shown, but only following motion and
notice of hearing. On the other hand, an attorney may withdraw without
motion and notice of hearing, but only upon the client's express consent in
court or in writing such a withdrawal. It is apparent that the consent pursuant
to Alaska Civil Rule 81(d)(1)(iii) is contemplated to be a current consent, rather
than one previously obtained. See also, ABA Canon 44. Therefore, the prior
accord on withdrawal of counsel made between attorney and client may not be
tendered to the court as an express consent in writing. The attorney and client
may agree that the attorney may seek to withdraw upon the occurrence of
future contingencies. However, this agreement to the attorney's withdrawal
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upon the occurrence of future contingencies may not be used within the
context of Alaska Civil Rule 81(d)(1)(iii), nor does it necessarily establish good
cause pursuant to Civil Rule 81 (d)(1)(i). The determination of whether good
cause has been established is made by the tribunal involved.
The ethical aspects of this matter are, in large part, covered by the Rules
of Professional Conduct which require the lawyer to exercise full honesty
toward the tribunal and mandate that the lawyer shall not proffer evidence
which is false. A lawyer shall exercise full candor toward the tribunal and shall
not knowingly make false statement of material fact or law, nor fail to disclose
material facts, nor offer evidence which the lawyer knows is false. See ABA
Model Code of Professional Responsibility, Rule 3.3. A lawyer shall represent
his client within the bounds of the law and, in his representation, shall not
conceal or fail to disclose that which is required by law knowingly use perjured
testimony or false evidence, or knowingly make a false statement of law or fact.
See DR 7-102 (A)(3)-(5). The lawyer, during trial, shall conduct himself in a
manner which comports with honesty, good faith, and full disclosure. See DR
7-106(A), (B) and (C). The Rules of Evidence and Civil Procedure are designed
to produce just decisions within the framework of the law. Thus, a lawyer is not
justified in consciously violating such rules and should be diligent in his efforts
to guard against his unintentional violation of them. The lawyer should not
subscribe to or verify pleadings which he believes are not in compliance with
applicable law or rules. See EC 7-25.
Therefore, based on all of the above, an attorney may not utilize such a
previously executed consent to withdraw in proceedings under Civil Rule
81(d)(1)(iii), as it is not a current consent in writing to said withdrawal.
Further, such a document should not be proferred as either a current express
agreement to withdrawal nor as evidence thereof even following motion and
notice of the hearing served on the client and counsel pursuant to Alaska Civil
Rule 81 (d)(1)(i).
The Committee is aware that the obtaining of advance consents to
withdraw has been done in the past, and nothing in this opinion is intended to
operate retroactively. In the future, the obtaining of consents to withdraw in
advance of actual intent to withdraw will be considered improper. An attorney
may enter into a contract with a client whereby the client recognizes that the
attorney has a right to withdraw from the representation upon the occurrence
of future contingencies, but the withdrawal itself must be accomplished by
notice and hearing, substitution, or current consent, in accord with the
provisions of Alaska Civil Rule 81(d).
Adopted by the Alaska Bar Association Ethics Committee on November 1,
1984.
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Approved by the Board of Governors on November 9, 1984.

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