The Professor Nedley Series

Motions to be Relieved

April 1, 2007

              How to get out of a relationship.  Remember - This is NOT a Borson motion.  The attorney is simply asking to be relieved from representing the client.  The motion should usually be granted unless it leaves the client or the court in a bad position not of their creation with little time left for the client or the court to solve the problem.  The client requires no similar motion although it is provided for in the statute., they simply write a letter to the lawyer terminating their services or tell them orally either directly or in open  court (Called the Agha motion). 

  1. WITHDRAWAL:  An attorney may withdraw without the consent or agreement of the client subsequent to the time a true judgment (not a bifurcated judgment) becomes final and prior to service upon him or her of a future proceeding.  The notice needs to be filed and mailed to the party at the party’s last known address, as well as to the adverse party or counsel. (CCP§285.1) However during a proceeding a motion to be relieved is required.

  2. GENERAL PURPOSE: An attorney will generally seek to be relieved as counsel during the pendency of an action, because (a) there is disagreement over the handling of the case, (b) personality conflicts, (c) lack of cooperation from the client or (d) non-payment.

  3. OVERVIEW:  Although a client has an absolute right to terminate an attorney’s services, the attorney does not have a correlative right to terminate the client absent the written agreement or a signed Substitution of Attorney form or the consent of the court pursuant to a motion under CCP§284.  The judges concern is to ensure due process, see that the client’s rights as well as the attorney’s rights are protected, relieve the attorney if there is no action imminent and ensure that the court has either a new attorney or a party substituted into the file with a current or best possible address.

  4. RULES OF PROFESSIONAL CONDUCT: The State Bar Rules of Professional Conduct, Rule 3-700, permit withdrawal by counsel where the attorney has taken reasonable steps to avoid prejudice to the rights of the client, including reasonable notice to the client, allowing reasonable time to secure new counsel and releasing without condition all client papers and documents to the client or a new attorney.

  5. Motion to Be Relieved:  Don’t rely on the preparer to have done the motion correctly
    1. Check to make sure that all documents have been served.
    2. Make sure that the time requirements are met.

                                                              i.      16 court days.

                                                            ii.      Plus the usual 5 days for mailing (or whatever number of days if from elsewhere out of state).

  1. The Rutter Series covers it at §14:357.
  2. It is set forth at CCP§284 (2). “Upon the order of the court, upon the application of either the party or the attorney, after notice from one to the other.”
  3. It is spelled out at California Rules of Court §376 (a), (b) & (c).
    1. Motion Document:  The motion must be on form MC051, Notice of Motion and Motion to be Relieved of Counsel.
    2. Supporting Document:  The motion shall be accompanied by Declaration of Attorney in Support of Motion to be Relieved as Counsel, MC052.  The declaration may be in general terms so as not to betray client confidentiality.  Generally the goal would be to explain why they can’t simply file a Substitution of Attorney form as is otherwise permitted by  CCP § 284(1).
    3. Service.  Notice must be given to all parties including the client.  Service may be personal or by mail (adding on the required n umber of days).

                                                              i.      If the client is served by mail rather than personally, then the motion shall be accompanied by a declaration stating that the mailing address being used is either the current address or the business address of the client or that the address is the last know address of the client AND the attorney has been unable to locate a more current address using reasonable efforts to do so within the past 30 days prior to filing. 

                                                            ii.      Mailing to client’s "last known" and stating that “It didn’t come back” is not sufficient.  It must be a “confirmed” address within the past 30 days.

    1. Order:  The Proposed Order Granting Attorney’s Motion to be Relieved of Counsel on Form MC 053 shall be lodged with the court AND SERVED ON THE CLIENT WITH THE MOVING PAPERS.

                                                              i.      The order shall specify all hearing dates scheduled including the trial date, if any.  If no dates are scheduled the court may specify a hearing date when the order is issued.

                                                            ii.      After the order is made and signed it must be served on all parties.

                                                          iii.      The court may delay the termination date until proof of service of the signed order has been filed with the court.