If you’re in the middle of a divorce in Chicago, Illinois then you know that nothing lasts forever. This may even include the relationship you have with your divorce lawyer. When you or your divorce lawyer decide to terminate your professional attorney/client relationship, your divorce lawyer must file a motion to withdraw as counsel with the court before your divorce lawyer can formally withdraw from your divorce case.
Why Would A Lawyer Withdraw From A Divorce Case?
Lawyers in Illinois are governed by the Supreme Court of the State of Illinois’ Rules of Professional Conduct.
According to those rules, sometimes the lawyer must withdraw from your case.
“RULE 1.16: DECLINING OR TERMINATING REPRESENTATION
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
(3) the lawyer is discharged.”
So, if the lawyer believes representing you may cause the lawyer to violate a rule or law, that lawyer must withdraw.
If the lawyer is sick, ill, or even just tired to the point where the lawyer cannot fully represent you, that lawyer must withdraw.
If you ask the lawyer to withdraw from your divorce case, the lawyer must withdraw from your divorce case.
There are also several circumstances under the rule which allow a lawyer to withdraw in the middle of an ongoing divorce case:
“(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.” Illinois Rules of Professional Conduct 1.16(b)
So, a lawyer can withdraw for any reason so long as it doesn’t impact the interests of the client. If the client can find another lawyer (which the client certainly can in a city the size of Chicago) then there is no real negative impact to the client by their lawyer withdrawing.
If the client is doing anything the lawyer disagrees with, the lawyer is entitled to withdraw.
If the client fails to pay the lawyer per the engagement agreement which the client and the lawyer entered into, the lawyer can withdraw.
So, basically, if a divorce lawyer wants to withdraw from your divorce case in Illinois, that divorce lawyer is allowed to withdraw.
What Must A Lawyer Do To Withdraw From A Divorce Case in Illinois?
An Illinois lawyer cannot just say “you’re fired” and then disappear. An Illinois lawyer must file a motion to withdraw from representation and send both their client, the opposing counsel, and any other interested parties of record notice of when that motion will be presented.
“A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” Illinois Rules of Professional Conduct 1.16(c)
The applicable law is as follows: “The motion for leave to withdraw shall be in writing and, unless another attorney is substituted, shall state the last known address(es) of the party represented. The motion may be denied by the court if granting the motion would delay the trial of the case, or would otherwise be inequitable.” Ill. S. Ct. R. 13(c)
The court must then give the lawyer permission to withdraw…which it almost always does. The reason for the withdrawal is almost always that the lawyer can drop a client for not paying.
How To Object To An Attorney Withdrawal
If you don’t want your lawyer to withdraw from your divorce case you are going to have to appear at the noticed date on your attorney’s motion to withdraw and explain to the judge why your lawyer should still work for you, despite the lawyers’ explicit desire to end their relationship with you.
In my years as a divorce lawyer in Chicago, Illinois, I have seen many lawyers withdrawal be denied but almost always for one reason…trial is coming up soon.
The Illinois Supreme Court Rule 13(c)(3) allows for this:
“The motion may be denied by the court if granting the motion would delay the trial of the case, or would otherwise be inequitable.”
Specifically, a lawyer in Chicago, Cook County, Illinois must follow the Illinois Rules of Professional Conduct.
“Withdrawal of Attorney – An attorney may not withdraw his appearance for a party except in accordance with the provisions of Illinois Supreme Court Rule 13(c).” Cook County Court Rule 1.4(b)
Judges need to clear their docket. Judges can not have a bunch of two year old cases going nowhere with no attorneys moving the case forward. So, when judges block off a whole day or week for trial, they don’t like it when an attorney attempts to withdraw.
If a lawyer alleges alleges that it would be infeasible to further represent their client despite the pending trial because of one of some ethical reason, the judge is likely to grant that withdrawal. The ethical reason for withdrawal usually cannot be disclosed because of attorney-client privilege but a lawyer with a strong reputation for honesty and morals, will almost always have the trust of the court.
If you object to the lawyer’s argument that there’s an ethical reason for withdrawal, you’ll have to waive attorney-client privilege and discuss that ethical issue with the court. Depending on the facts, it might not be in your best interest to discuss your alleged ethical issues with the judge who will be deciding your divorce.
What If Your Lawyer Tries To Withdraw From Your Divorce Case And The Court Does Not Allow Your Lawyer To Withdraw?
90% of the time a lawyer wants to withdraw from a case the issue is about unpaid attorneys fees.
If, for some reason, a court denies a lawyer’s petition for withdrawal you are still under contract with that lawyer and will still owe that lawyer fees for the past work and ongoing work the lawyer and the law firm does.
If exhibits are required in your case that require more than a print from a simple printer, the lawyer is under no obligation to reach into their own pocket and prepare those exhibits. The same goes for deposition expenses and other necessary third party vendors such as Guardian Ad Litems or parenting coordinators.
Why would anyone want someone to work for them who doesn’t want to work? Why would anyone expect a good result from a lawyer who tried to withdraw? We can hope that the lawyer fulfills their ethical duty in zealously representing a client whether they are paid or not…but at some point human nature is going to tilt the scales of justice.
After your case is over, you can expect a lien on any assets your divorce lawyer got awarded to you in the divorce. You can also expect your lawyer to file a petition for attorneys fees and to be subsequently contacted by your divorce lawyer’s collections lawyer.
What Must Your Former Divorce Lawyer Do After Withdrawing?
“(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.” Illinois Rules of Professional Conduct 1.16(d)
Your divorce lawyer will prepare a proposed order for the court to order granting the divorce lawyer’s withdrawal. That order will specifically grant you 21 days to retain new counsel or file your own appearance.
You may inadvertently waive the 21 day continuance by agreeing to proceed with a scheduled hearing.
When a party, after an attorney’s withdrawal, “proceeded without asking for a continuance, and affirmatively indicated to the trial court that he was ready to proceed, we find that the respondent waived any error the trial court made in denying [that party’s] motion to continue. ” In re Marriage of Milller, 273 Ill. App. 3d 64, 69 (Ill. App. Ct. 1995)
21 days may seem short if you have a complicated divorce case but the court presumes you are familiar with your own divorce case and will not grant you an extension. The court presumes you are familiar with your own divorce case.
“Even where a party is represented by counsel there is a “duty to personally follow the progress of his case.”” Fiallo v. Lee, 356 Ill. App. 3d 649, 656 (Ill. App. Ct. 2005)
Your former divorce lawyer must then tender to you or your new attorney your entire file and anything related to your case. A lawyer can hold a client’s file until what is owed is paid.
If there is money left in your retainer, your former lawyer must return the unearned retainer money back to you.
What To Do After Your Illinois Divorce Lawyer Withdraws?
“Unless another attorney is, at the time of such withdrawal, substituted for the one withdrawing, the party shall file in the case within 21 days after entry of the order of withdrawal a supplementary appearance, stating therein an address at which the service of notices or other documents may be had upon him or her. A self-represented litigant may supply an e-mail address for service, pursuant to Rule 11(b). In the case of the party’s failure to file such supplementary appearance, subsequent notices and filings shall be directed to the party at the last known business or residence address.” Ill. S. Ct. R. 13(c)(2)
You have to file an appearance or hire an attorney after your lawyer withdraws! If you don’t the opposing side can just send documents to some address that may be only tangentially related to you.
Nothing will happen in the 21 days the court allows for you to file your appearance or obtain new counsel.
“[T]he letter and spirit of Rule 13 require a 21-day transition period and that nothing prejudicing a client’s rights should occur within the 21 days following the allowance of an attorney’s withdrawal.” In re Marriage of Miller, 273 Ill. App. 3d 64, 69 (1995)
If you appear in court without having filed an appearance, you will likely not be permitted to speak or present evidence in your favor.
If you file an appearance without hiring a lawyer, you will be held to the same standard of practice and professionalism as if you, yourself, were a lawyer. “A pro se litigant must comply with the rules of procedure required of attorneys, and a court will not apply a more lenient standard to pro se litigants.” Gillard v. Nw. Mem’l Hosp., 436 Ill. Dec. 718, 728 (Ill. App. Ct. 2019)
Don’t expect to get a long continuance to get your case together just because you have no lawyer. “The absence of an attorney does not give a litigant the right to a continuance, but the diligence of the party seeking it is a critical consideration in determining whether or not to grant a continuance.” Demos v. Haber, 101 Ill. App. 3d 901, 903, 428 N.E.2d 972, 973-74 (1981)
Hiring A New Divorce Lawyer After Your Divorce Lawyer Withdraws
For all the reasons you hired a divorce lawyer to start your case, you should hire a divorce lawyer to finish your case.
Divorce lawyers will be hesitant to jump into an ongoing divorce case, especially when hearings or trials are scheduled. Divorce lawyers will also be likely to call your previous attorney and even the opposing counsel before taking your case.
Did My Lawyer Withdraw When My Divorce Case Finalized?
Just because your Judgment of Dissolution of Marriage was granted does not mean that you are done in court. You may have motions to enforce or motion to modify the terms of the divorce in the future. Your lawyer from before your divorce does not automatically represent you, however.
“If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved.” SWS Financial Fund A v. Salomon Brothers, Inc., 790 F. Supp. 1392, 1398 (1992)
While family law cases never seem to end, the lawyer hired for a divorce is no longer employed the moment the divorce is entered.
“The attorney-client relationship terminates after the judgment of divorce is entered. The notice required after judgment is to the parties and not to their attorneys.” In re Marriage of Ponsart, 118 Ill. App. 3d 664, 665 (Ill. App. Ct. 1983)
After a divorce, your lawyer can no longer officially receive documents on your behalf until they revive the appearance (usually done by just actually acknowledging representation).
If you would like my office to review your case after a Cook County judge has granted a petition to withdraw, I would be happy to arrange a brief, free consultation. It is very difficult to digest an entire ongoing case within a short period of time so the consultation may become paid. Additionally, my retainer may fluctuate based on the anticipated work to be done. After all, no one ever withdrew from an uncontested divorce case.
