Why Would an Attorney File a Motion to Withdraw?

A criminal defense attorney may decide to file a motion to withdraw as counsel in a prosecution for various reasons. In most cases, an attorney will file a motion for withdrawal due to a client’s failure to abide by the terms of their engagement/retainer agreement, such as:

  • Failing to pay the attorney’s fees
  • Withholding evidence from the attorney
  • Failing to maintain candor with the attorney
  • Failing to respond to the attorney’s communications

Attorneys also frequently withdraw from representation when:

  • A client wishes to terminate the attorney’s service and either obtain successor counsel or represent themselves
  • They and the client have fundamental disagreements over case strategy, leading the attorney to believe another lawyer will better serve the client
  • Their client proposes to provide untruthful evidence or testimony to the court or requests the attorney engage in illegal or unethical conduct
  • They discover a conflict of interest in their representation, such as representing another person who becomes an adverse witness in the criminal case

Request a Legal Case Evaluation

Basics of Filing a Motion to Withdraw

In Nevada, an attorney can withdraw from representing a defendant in a criminal case only with the court’s approval. Courts typically approve when the defendant has obtained substitute counsel and both the attorneys and the defendant file written consents to the substitution. Thus, an attorney seeking to withdraw from a case must file a motion to withdraw that explains the reasons for the attorney’s request to withdraw and how the attorney proposes to minimize the disruption to the case or any prejudice to the client.

motion to withdraw

Comprehensive Guide to Filing a Motion to Withdraw

When an attorney files a motion to withdraw from representation, they must follow several steps before the court can approve the motion:

  • First, attorneys should consider the timing of their motion. Courts typically decline to grant an attorney’s request to withdraw from representation, especially if the defendant does not have successor counsel if granting the motion would delay the trial or another critical hearing.
  • An attorney must prepare and file a motion to withdraw with the court. The motion should clearly state the reasons the attorney believes justify their withdrawal from the case. 
  • The attorney must serve a copy of their motion on their client to inform them of the attorney’s intent to withdraw from representation.
  • The attorney must also provide the court with the client’s last known address, phone number, and email address so the court can forward docket papers to the client if the court grants the attorney’s motion to withdraw. 

A successful motion to withdraw must either include written consent from the client or persuasively explain the need for the attorney to withdraw. However, the attorney’s duty to maintain attorney-client privilege means the attorney may not disclose the client’s confidential information to explain the basis for the motion to withdraw. Nevertheless, an attorney can highlight various factors that may have caused a breakdown of the attorney-client relationship, such as:

  • The client’s failure to pay the attorney’s invoices that have imposed an unreasonable financial burden on the attorney
  • The client’s lack of communication
  • The client’s fundamental disagreement with the attorney’s proposed case strategy

The motion must also convince the court that allowing the attorney’s withdrawal will not materially prejudice the client’s interests or delay the case.