Notice of Withdrawal: Attorney Ethics, Steps, and Examples

Introduction

A Notice of Withdrawal is the formal way an attorney ends representation. In the U.S., it often includes notifying the client, the court, and opposing counsel. When the matter is in active litigation, most courts require a motion and court approval before counsel can withdraw. Outside of court (for example, in transactional work), a written notice to the client is typically sufficient, paired with prompt return of the client’s file and any unearned funds.

Ethical obligations at the end of a representation are set out in ABA Model Rule 1.16(d) and state counterparts. At a minimum, an attorney must take reasonably practicable steps to protect the client’s interests: give reasonable notice, allow time to hire new counsel, surrender papers and property the client is entitled to receive, and refund any unearned fees or unused expenses. In some jurisdictions, attorneys may retain certain papers to the extent other law permits, but that is tightly limited and cannot harm the client’s immediate needs.

This guide explains what a Notice of Withdrawal is, when it’s allowed or required, what to include, how to file and serve it, and how to reduce risk for both lawyer and client.

What You'll Learn

• What a Notice of Withdrawal is and who must receive it
• The core duties under ABA Model Rule 1.16(d)
• Common grounds for withdrawal (e.g., nonpayment, conflicts, breakdown in communication)
• When court approval is required versus when a substitution of counsel can be used
• What to include in the notice and what not to reveal
• How to return the client file and refund unearned fees
• Practical steps and timelines for a smooth change in counsel
• Real-world examples showing how courts handle withdrawal requests

Core Concepts

What a Notice of Withdrawal Is and Who Gets It

• Definition: A Notice of Withdrawal is an attorney’s formal statement that representation has ended. It may be a simple notice (non-court matters) or a motion with a proposed order (court cases).
• Recipients:
  • Client: Always notify the client, in writing, with clear effective dates and next steps.
  • Court: If litigation is pending, file a motion to withdraw or submit a substitution of counsel if new counsel is ready to appear.
  • Opposing counsel/parties: Provide notice consistent with service rules so the record is clear.
• Timing: Give reasonable notice to avoid prejudice to the client, taking into account upcoming deadlines, hearings, or statutes of limitation.

Ethical Duties Under ABA Model Rule 1.16(d)

Upon termination of representation, an attorney must take steps reasonably practicable to protect the client’s interests, including:

• Reasonable notice to the client
• Time for the client to hire other counsel
• Surrendering papers and property the client is entitled to receive
• Refunding any unearned fees or unused expenses
• Retaining papers only if permitted by other law and only in a way that does not harm the client’s immediate needs

Tip: Many states limit retaining liens on client files, especially if withholding would harm the client. Check your state’s rules and ethics opinions.

When Withdrawal Is Allowed or Required

• Mandatory withdrawal (Model Rule 1.16(a)): Required if representation will result in violation of the rules of professional conduct or other law, the lawyer’s physical or mental condition materially impairs representation, or the lawyer is discharged.
• Permissive withdrawal (Model Rule 1.16(b)): Common grounds include nonpayment, client insists on action the lawyer finds repugnant or with which the lawyer has a fundamental disagreement, or a breakdown in the attorney-client relationship. Courts assess prejudice and case posture when deciding motions.

Note: Even when a ground exists, a court may deny withdrawal near trial or if withdrawal would severely prejudice the client or delay proceedings.

Court Approval vs. Substitution of Counsel

• Motion to withdraw: Required by most courts when no new counsel is ready to appear or when a party is pro se after withdrawal. Follow local rules for timing, content, and hearings.
• Substitution of counsel: If new counsel has been retained, many courts allow a signed substitution form from outgoing and incoming counsel (and sometimes the client) without a motion.
• Criminal and certain civil contexts: Courts apply stricter standards and may hold hearings to assess prejudice, timing, and client readiness to proceed.

Client File, Property, and Refunds

• Deliver promptly: Provide the client with their papers and property—pleadings, discovery, correspondence, expert reports, and client-provided documents. Many states require the full “end product” file; some also require work product if withholding would harm the client.
• Format and cost: Provide electronic copies when feasible. If only paper exists, coordinate reasonable copying or scanning. Fees must be reasonable and cannot be used to pressure payment of disputed bills.
• Trust account: Refund unearned fees and unused expense advances promptly. Document the accounting and provide a final invoice showing any refund due.

Key Examples or Case Studies

Example 1: Withdrawal Due to Nonpayment (Civil Litigation)

• Context: Client stopped paying agreed fees in a commercial case with depositions scheduled in 45 days.
• Steps taken:
  • Sent written warning per fee agreement and offered a short payment plan.
  • When unpaid, filed a motion to withdraw 30 days before key deadlines, served client and all parties, and requested a short continuance.
  • Returned client’s file electronically within five business days and refunded the unused expense retainer.
• Result: Court granted the motion, reset deadlines by 30 days, and noted counsel’s reasonable notice and prompt return of the file.

Example 2: Withdrawal Due to Conflict of Interest (Transactional Matter)

• Context: While drafting a merger agreement, the attorney discovered a conflict with an existing client in a related deal.
• Steps taken:
  • Notified the client in writing that a conflict required withdrawal.
  • Offered names of conflict-free firms and moved the file within three days.
  • Refunded a portion of the flat fee tied to uncompleted tasks.
• Result: Client transitioned to new counsel without missing transaction milestones.

Case Study: In re Smith (Communication Breakdown)

• Scenario: Communication between lawyer and client collapsed; client ignored repeated requests for key decisions with a summary judgment deadline approaching.
• Steps taken:
  • Lawyer documented attempts to reach the client and warned of the need to withdraw.
  • Filed a motion to withdraw 21 days before the deadline and asked the court for a short extension to allow the client to retain new counsel.
• Court response: Withdrawal granted. The court highlighted compliance with ethical duties and the reasonable timeline provided to the client.

Case Study: Johnson v. Doe (Personal Circumstances)

• Scenario: Attorney faced sudden medical issues that materially impaired the ability to continue representation.
• Steps taken:
  • Filed a motion to withdraw with a brief, non-confidential explanation of impairment, served all parties, and proposed a short continuance.
  • Delivered the complete file to the client and refunded the balance of the retainer.
• Court response: Motion granted. The court appreciated the prompt notice and the plan to protect the client’s case.

Practical Applications

For attorneys

• Check the rules:
  • Review ABA Model Rule 1.16 and your state’s version.
  • Confirm local court rules for motions to withdraw, substitution forms, service, and timing.
• Plan the timeline:
  • Work backward from key dates (hearings, discovery cutoffs, trial).
  • Aim to move to withdraw far enough in advance to avoid prejudice—often 30+ days before major events.
• Draft the notice or motion:
  • Keep reasons brief and non-prejudicial. Do not reveal confidential information.
  • Include: procedural history, upcoming deadlines, whether the client consents, status of file delivery, and refund status.
  • Attach a proposed order and indicate whether opposing counsel objects.
• Serve promptly:
  • Serve the client at all known addresses and by email if permitted.
  • Serve all parties through the court’s e-filing system or as local rules require.
• Protect the client:
  • Provide a list of upcoming deadlines and court dates.
  • Offer a short grace period for continued emergency coverage if allowed by your jurisdiction, or request the court set new dates.
  • Send names of referral services or neutral directories (if appropriate).
• Deliver the file:
  • Provide a complete, organized file; include native e-discovery where possible.
  • Document delivery with an index and receipt.
• Close out fees:
  • Send a final invoice.
  • Return any unearned fees and unused expense advances without delay.
  • Provide a trust accounting statement.
• Document everything:
  • Keep copies of all notices, filings, delivery receipts, and refund checks.

For clients

• Act quickly:
  • Read the notice, track dates, and contact new counsel immediately.
  • Ask for your full file in a usable format and confirm refund details.
• Prevent prejudice:
  • If you cannot secure new counsel in time, ask the court (or opposing counsel) for a brief extension.
• Keep contact info current:
  • Update your mailing address, email, and phone with the court and opposing counsel if you will be pro se temporarily.
• Check your fee agreement:
  • Review terms on withdrawal, file delivery, and refunds.

Common drafting tips

• Be concise: State that withdrawal is necessary and that all ethical duties are being met.
• Protect confidentiality: If details are sensitive, request to submit a limited explanation in camera or under seal if your court allows.
• Avoid argumentative language: The purpose is orderly transition, not to litigate grievances.

Summary Checklist

• Identify the basis for withdrawal (mandatory or permissive) and confirm timing against key deadlines.
• Review ABA Model Rule 1.16(d) and applicable state and local court rules.
• Prepare a clear notice or motion; avoid revealing privileged information.
• Give the client reasonable notice and time to hire new counsel.
• File a motion to withdraw or submit a substitution of counsel if new counsel is ready.
• Serve the client, the court, and opposing counsel per rule.
• Deliver the complete client file promptly; document transfer.
• Refund any unearned fees and unused expenses; provide a final accounting.
• Request schedule adjustments as needed to prevent prejudice.
• Keep thorough records of all steps taken.

Quick Reference