• September 21, 2011

The Minnesota General Rules of Practice, promulgated by the Minnesota Supreme Court, set out rules for “withdrawal of counsel.”  Rule 105.  A trend has been noted of late, however, where Minnesota trial court judges impose more restrictive rules for withdrawal in the court scheduling orders, which has the result of causing some lawyers to be stuck in cases where they want to withdraw for one reason or another (most commonly, non-payment of fees). 

Rule 105 provides:

After a lawyer has appeared for a party in any action, withdrawal will be effective only if written notice of withdrawal is served on all parties who have appeared, or their lawyers if represented by counsel, and is filed with the court administrator if any other paper in the action has been filed.  The notice of withdrawal shall include the address and phone number where the party can be served or notified of matters relating to the action.

(Note: no requirement for permission from the court for lawyers to withdraw.)  Commentary for the rule continues:

The Task Force believes that uniformity in withdrawal practice and procedure would be desirable.  Existing practice varies, in part due to differing rules and in part due to differing practices in the absence of a rule of statewide application.  The primary concern upon withdrawal is the continuity of the litigation.  Withdrawal should not impose additional burdens on opposing parties.

If Lawyer A is involuntarily (i.e., not pro bono) doing “free legal work” for Client B, this by definition depletes “lawyer supply.”  Other clients ultimately bear the price hike when courts compel lawyers to work for some for free (that is, their lawyers are unavailable for their work and/or their lawyers are forced to increase rates to paying clients to subsidize nonpaying).

It is even worse.  It is not only that lawyers find themselves compelled to represent clients when the lawyers are getting zero dollars for their time.  Lawyering also includes costs (filing fees, postage, copying, and so on).  These come out of the lawyer’s pocket, of course, if a client does not pay.

It is still worse.  What will lawyers tend to do if, prior to accepting legal engagements, they have to contemplate being locked into non-paying business relationships for substantial lengths of time?  They will decline to represent litigants with valid claims and defenses who cannot put up a substantial retainer to ensure that the lawyer will be compensated.

Nevertheless, there appears to be an increasing trend of Minnesota judges forbidding withdrawal from cases without leave of court or at least putting this rule into scheduling orders.  Under such circumstances, it seems that lawyers are forced to bring motions to withdraw (which cost money, of course) notwithstanding an express Minnesota Supreme Court rule to the contrary.  (This also poses tricky/delicate issues of attorney-client privilege.  Adverse parties would be particularly interested to hear that your client cannot pay the freight for litigation (or whatever other issue has caused withdrawal)).

Unlike large law firms with deep benches of “back-up” and a supply of new lawyers who can use cases for training and float on the overall firm’s cash flow, capacity for small firms and solos is inelastic.  “Lawyer time” is the only profit center for most such businesses.  The burden of involuntary servitude on solo and small firm lawyers is particularly harsh.  Maybe there should be a law against it.

This situation is arguably one of many cost-cutting measures of our judiciary (forbidding withdrawal, as mentioned above, lowers the number of cases filed and lowers disruption to court calendars of pro se litigants or litigants “between lawyers”).  But when do we reach the point when “our justice system” becomes self-contradicting?

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