After serving a summons and complaint, can a lawyer simply withdraw when the client stops paying and communicating, or must the lawyer file the case and move for leave to withdraw?

Plain-English summary

Attorney A served a summons and complaint, which Party B's attorney answered. After service, Attorney A's client moved out of the jurisdiction, stopped paying fees, and stopped communicating, so Attorney A wanted to withdraw. The committee was asked whether Attorney A could withdraw without leave of court, or had to file the case (paying the filing fee) and bring a motion for leave to withdraw.

The committee concluded Attorney A must file the case and move for leave to withdraw. Rule 3.4(c) prohibits a lawyer from knowingly disobeying an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists. One such rule is North Dakota Rule of Court 11.2(a), which provides that an attorney's appearance for a party may be withdrawn only upon leave of court. The committee reasoned that by serving a summons and complaint, Attorney A made an appearance, voluntarily submitting himself and his client to the court's jurisdiction.

The committee also described Rule 11.2's procedural requirements: reasonable notice of the motion must be given by personal service, registered or certified mail, or a traceable commercial carrier to the party's last known address, with an affidavit of efforts if notice is undeliverable, and the written motion must state the represented party's last known address, email, and telephone numbers unless another attorney is substituted. The committee noted that Rule 11.2 does not address whether there can be an "appearance" in a case never filed with the court, but concluded that on these facts, where the summons and complaint were served, withdrawal requires leave of court.

In practice

This opinion, approved September 1, 2015, applies North Dakota Rule of Professional Conduct 3.4(c) and North Dakota Rule of Court 11.2 as they stood at that time. The committee held that serving a summons and complaint is an appearance that submits the lawyer and client to the court's jurisdiction, so under Rule 11.2(a) the lawyer's appearance may be withdrawn only by leave of court. The committee held that the lawyer must file the case, incur the filing fee, and bring a motion for leave to withdraw, and that withdrawing without leave would violate Rule 11.2 and therefore Rule 3.4(c)'s prohibition on knowingly disobeying an obligation under the rules of a tribunal.

Common questions

Q: After serving a summons and complaint, can a lawyer just withdraw if the client stops paying and communicating?

A: No. The committee concluded the lawyer must file the case and move for leave to withdraw, because serving the summons and complaint is an appearance and Rule 11.2(a) allows withdrawal of an appearance only by leave of court.

Q: Why does serving the summons count as an appearance?

A: The committee reasoned that by serving a summons and complaint, the lawyer voluntarily submits himself and his client to the court's jurisdiction, which is an appearance.

Q: What rule does withdrawing without leave of court violate?

A: The committee concluded it violates North Dakota Rule of Court 11.2 and therefore Rule 3.4(c), which bars a lawyer from knowingly disobeying an obligation under the rules of a tribunal.

Background and rules framework

The opinion interprets North Dakota Rule of Professional Conduct 3.4(c) (Model Rule 3.4(c), fairness to opposing party and counsel; not knowingly disobeying an obligation under the rules of a tribunal) and applies North Dakota Rule of Court 11.2 (withdrawal of attorneys), including Rule 11.2(a)'s leave-of-court requirement and Rule 11.2(b)'s motion and notice requirements.

The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.4 / N.D.R. Prof. Conduct 3.4(c) (fairness to opposing party and counsel; obeying tribunal rules)
• N.D.R.Ct. 11.2 (withdrawal of attorneys; leave of court; notice and motion requirements)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

See also

• ABA Formal Op. 476: Withdrawal for Unpaid Fees
• AL Ethics Op. 1992-04: Withdrawing From a Client
• ABA Formal Op. 519: Disclosure in Withdrawal Motions

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/opinion_15-07(1).pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE
OPINION NO. 15-07

QUESTION PRESENTED

The Ethics Committee has been asked to render its opinion on whether Attorney A may
ethically withdraw without leave of court, or must Attorney A file the case (incurring the
cost of the filing fee) and bring a motion for leave to withdraw?

OPINION

Based on the facts presented below, Attorney A must file the case, incurring the cost of a
filing fee, and bring a motion for leave to withdraw. Withdrawal without leave of court
would be in violation of Rule 11.2 of N.D.R.Ct., and therefore also in violation of Rule
3.4(c) of N.D.R. Prof. Conduct.

APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT

Rule 3.4(c), N.D.R. Prof. Conduct: Fairness to Opposing Party and Counsel
Rule 11.2, N.D.R.Ct: Withdrawal of Attorneys

FACTS PRESENTED

Attorney A serves a summons and complaint which is answered by Party B’s attorney.
After the summons and complaint are served, Attorney A’s client moves out of the
jurisdiction, stops paying Attorney A’s attorney's fees, and/or stops communicating,
prompting Attorney A to seek to withdraw.

DISCUSSION

Rule 3.4(c) of N.D.R. Prof. Conduct prohibits a lawyer from knowingly disobeying an
obligation under the rules of a tribunal except for an open refusal based on an assertion
that no valid obligation exists. One such rule is N.D.R.Ct. 11.2.

Specifically, Rule 11.2(a) of N.D.R.Ct. provides an attorney’s appearance for a party may
only be withdrawn upon leave of court. Generally, appearance can be defined as, “a
coming into court by a party to a suit, either in person or through an attorney”, or “the
voluntary submission to a court’s jurisdiction”. In this case, by serving a summons and
complaint, Attorney A is making an appearance by voluntarily submitting himself and his
client to that court’s jurisdiction.

Further, reasonable notice of the motion for leave to withdraw must be given by personal
service, by registered or certified mail, or via a third-party commercial carrier providing a
traceable delivery, directed to the party at the party’s last known business or residence
address. If the notice is undeliverable, the attorney must submit an affidavit to the court
reciting the efforts made to give notice.

Furthermore, Rule 11.2(b) of N.D.R.Ct. provides the motion for leave to withdraw must be

in writing and, unless another attorney is substituted, must state the last known address,
email addresses and telephone numbers of the party represented.

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CONCLUSION

Attorney A must file the case, incurring the cost of a filing fee, and bring a motion for leave
to withdraw. Withdrawal without leave of court would be in violation of Rule 11.2 of
N.D.R.Ct., and therefore also in violation of Rule 3.4(c) of N.D.R. Prof. Conduct.

Rule 11.2 of N.D.R.Ct. provides that an attorney’s appearance for a party may only be
withdrawn upon leave of court. Rule 11.2 does not, however, indicate whether there can
be an “appearance” in a case that has never been filed with the court.

Rule 3.4(c) of N.D.R. Prof. Conduct provides that a lawyer shall not knowingly disobey an
obligation under the rules of a tribunal.

This opinion was drafted by Ward K. Johnson, III, and was unanimously approved by the
Ethics Committee on the 1st day of September, 2015.

Ethics Committee Chairperson

This opinion is provided under Rule 1.2(B), North Dakota Rules for Lawyer Discipline,
which states:

A lawyer who acts with good faith and reasonable reliance on a written
opinion or advisory letter of the ethics committee of the association is not
subject to sanction for violation of the North Dakota Rules of Professional
Conduct as to the conduct that is the subject of the opinion or advisory
letter.

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