When can a lawyer withdraw from a case after suit has been filed: no liability, client problems, or the lawyer's own illness?
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This page answers the general question as of 1976. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The committee addressed when a plaintiff's lawyer, after filing a negligence action, may seek the court's permission to withdraw, specifically where investigation or expert consultation shows no liability, where the lawyer has "client problems," or where a recent illness leads his doctor to advise curtailing his activities.
The committee began from the premise that only for the most compelling reason may a lawyer be relieved of an accepted employment (EC 2-32), and that where a matter is before a tribunal whose rules require permission to withdraw, the lawyer may not terminate the representation without first obtaining the tribunal's consent (DR 2-110(A)(1)); this holds even on retirement from practice (N.Y. State 178 (1971)). In every case the lawyer must take reasonable steps to avoid foreseeable prejudice, including due notice and time for the client to retain new counsel (DR 2-110(A)(2)). Withdrawal is mandatory, subject to required court consent, where the lawyer's mental or physical condition makes it unreasonably difficult to carry out the employment effectively (DR 2-110(B)(3)); where the condition makes it merely difficult, the lawyer may seek permission to withdraw (DR 2-110(C)(4)), so a partially disabled lawyer may select the cases he can handle and ask leave to withdraw from the rest.
On the merits side, a lawyer who becomes convinced after investigation or expert consultation that the defendant has no liability may request permission to withdraw (DR 2-110(C)(1)(a)); a retainer providing for such withdrawal is proper but cannot dispense with court permission in a litigated matter. "Client problems" depend on their nature: DR 2-110(C)(1) lists grounds such as a client insisting on an unwarranted claim, pursuing an illegal course, or otherwise rendering the representation unreasonably difficult, and DR 2-110(C)(1)(f) allows withdrawal where the client "deliberately" disregards a fee or expense obligation, the committee stressing that mere non-deliberate failure to pay is not a ground (N.Y. State 212 (1971); N.Y. State 187 (1971)). The committee also noted the catch-all of DR 2-110(C)(6), permitting a withdrawal request where the lawyer believes in good faith the tribunal will find other good cause.
Currency note
This opinion was issued in 1976, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (withdrawal from representation is now governed by Rule 1.16). Subsequent rule amendments or later opinions may have changed the analysis, including the specific subsections cited here. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer drop a case after deciding the defendant isn't liable?
A: Under this opinion, the lawyer may request the court's permission to withdraw after becoming convinced through investigation or expert consultation that there is no liability (DR 2-110(C)(1)(a)), but in a litigated matter court permission is still required.
Q: Is non-payment of fees a ground to withdraw?
A: Per the opinion, only deliberate disregard of a fee or expense obligation supports a withdrawal request (DR 2-110(C)(1)(f)); a mere, non-deliberate failure to pay is not a ground.
Q: What if the lawyer's own illness interferes?
A: The committee held withdrawal is mandatory where the lawyer's condition makes the representation unreasonably difficult, and permissive where it makes it merely difficult, in each case subject to required court consent.
Q: Does the lawyer need the court's permission to withdraw?
A: Yes, where the matter is before a tribunal whose rules require it; the lawyer must also give the client notice and time to retain new counsel to avoid prejudice (DR 2-110(A)).
Citations and references
Rules of Professional Conduct:
- MR 1.16 (declining or terminating representation)
- NY DR 2-110; DR 7-101(A)(2); EC 2-32; EC 7-8
Other opinions cited:
- N.Y. State 178 (1971): court permission needed to withdraw even on retirement
- N.Y. State 212 (1971); N.Y. State 187 (1971): non-deliberate non-payment is not a ground to withdraw
See also
- NY State Bar Op. 545: Withdrawal due to a client's unlawful conduct
- NY State Bar Op. 562: A client's intent to commit a crime and withdrawal
- NY State Bar Op. 1144: Limiting communications and withdrawing from a difficult client
Source
- Landing page: https://nysba.org/opinion-440/
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