Motion To Withdraw: Templates & More

A motion is a procedure initiated within an existing lawsuit to ask the court to do something or grant a party permission to do something. A motion is not typically a standalone proceeding brought outside of the context of an existing lawsuit. 

A motion to withdraw is a procedure used to ask a court’s permission to take back or “withdraw” some step the party or lawyer has taken. Motions to withdraw usually have one of four goals (all of which are discussed in more detail in this article):

1. Obtain the court’s permission for a particular lawyer to resign from a case as attorney of record;
2. Remove a lawsuit from the court’s docket;
3. Cancel an action in order to file it in another venue or forum; or
4. Change a plea in certain types of criminal cases.

The requirements vary depending on the specific court and the type of relief sought, but generally, these are routine, simple motions and are not difficult to prepare.

Process for a Motion to Withdraw

First, the moving party (i.e., the party filing the motion) prepares documents setting forth their request, files it with the court, and serves it on the other parties in the case. Where counsel is moving to withdraw, he or she must also serve the documents on the client.

Court Requirements

Many courts have specific forms for these types of motions, and they have rules requiring that a party seeking to bring such a motion use the court’s form to do so. In jurisdictions that do not use a prescribed form, a motion to withdraw will usually consist of:

1. A notice of motion;
2. A brief or memorandum of points and authorities setting out the basis for the request, the relevant facts, and explaining how the request meets any legal tests to be applied;
3. A declaration or affidavit; and
4. Optional: exhibits that constitute the evidence in support of the motion.

Additional Court Requirements (Depending On the Court)

Some courts have requirements in addition to the documents in the section above. Specifically, any of the following may be required depending on the jurisdiction:

1. Draft Order. Some courts require the moving party to provide a draft order for the court to complete and sign. 
2. Meet and Confer. Some courts require that the moving party meet and confer with the other side and state the outcome of that process. If the parties are in agreement about the motion, the court may require the parties to have entered a stipulation, which is a document whereby the parties in a lawsuit demonstrate that they all agree with the motion. 
3. Hearing Date. Some courts require the moving party to secure a date and include that in the notice of motion. This generally involves consulting the court’s website or contacting the court clerk to ascertain when the judge hears motions and what motion dates are available for a hearing. Court rules will often require that the date be set far enough in the future to allow other parties to file a response to the motion.

Is a hearing required?

This type of motion is often not controversial, and often no hearing is required. However, there are circumstances where the court will want to conduct a hearing. The court may require a hearing in order to ensure the interests of the parties are protected. For example, if a lawyer has filed a motion to withdraw from a case, the court may want to ask questions to ensure the lawyer has discharged his or her duty to the client and make orders to ensure the case continues to proceed efficiently. 

How do you Oppose a Motion to Withdraw?

Like any other type of motion, the responding party can file an opposition. This usually consists of a memorandum or brief setting out the relevant law and the party’s arguments for why the motion should not be granted and a declaration or affidavit containing evidence for why the motion should not be granted. Like the motion, some courts have standardized forms they require parties to use for filing oppositions. Almost all courts have local or jurisdiction-wide rules about the formatting and content of these documents. 

As with all motions, the court will have fixed and fairly short deadlines for opposing a motion to withdraw – often in the range of two weeks. It is important to check your local court's rules and note that courts will rarely allow a party to oppose a motion after the deadline has passed. If you need extra time, you must seek the court’s permission in advance and must show good reasons.

Types of Motions for Withdrawal

Attorney/Counsel Withdrawal 

Many jurisdictions require an attorney to file a motion if he or she wishes to withdraw from a case. Attorneys will do this in circumstances where they can no longer represent the client.

The attorney-client relationship has several key features that must be in place in order to function:

• The attorney must trust the client enough to be reasonably confident the client is telling him or her the truth and is disclosing all relevant information.
• The client must trust the attorney enough to follow the attorney’s advice.
• There must be no conflict of interest – that is, the attorney cannot have personal or professional obligations or interests that conflict with the duty to represent the client zealously.
• Because law is a business as well as a profession, in most cases, the client must pay the attorney’s fees reasonably promptly in order for the representation to continue.

If one or more of these is missing, the attorney may wish to withdraw from the case. Most jurisdictions require the attorney to file a motion to withdraw. The attorney is usually required to state, while preserving privilege and confidentiality to the maximum extent possible, why he or she wishes to withdraw. 

With this type of motion for withdrawal, laws and local rules of court or professional standards often impose obligations on the attorney to ensure the client’s interests are protected, and the court’s calendar is maintained. For example, the attorney may not be allowed to withdraw until the client has had a reasonable amount of time to find a new lawyer. Or the attorney may not be allowed to withdraw until after the next court event if it is in the very near future to avoid delaying the proceedings. The court may consider such factors in deciding whether to grant the motion and on what terms.

The client will have an opportunity to respond and state their needs. They may argue that the attorney should be required to continue the representation or that other accommodations should be made, such as granting the client extra time to find a new lawyer. 

Motion to Terminate a Lawsuit

This is another common type of motion to withdraw. It is filed by the plaintiff to terminate a lawsuit after it is initiated and before judgment is reached. The two most common reasons for this type of motion are that the parties have reached a settlement or something has happened that has made the lawsuit no longer viable or no longer appealing to the plaintiff. This can occur when the law changes, when new facts come to light that make it less likely that the plaintiff will win,  or when the plaintiff’s personal or business circumstances change such that winning is no longer important. It can also happen when a plaintiff runs out of funds to pursue the lawsuit.

In the US, these motions are often non-controversial and are resolved without a hearing. 

In countries where the unsuccessful party in a lawsuit is required to pay the winner’s attorney fees and other costs, a motion to withdraw an action may require a hearing or other filings to address whether the plaintiff will need to pay the defendant for legal costs incurred up to that point.

Depending on the nature of the lawsuit, a motion to withdraw may not be available once the proceedings reach an advanced stage. For example, after a class action has been certified, in many jurisdictions, a plaintiff cannot unilaterally decide not to proceed because the plaintiff has been tasked with representing all affected members of the public. In this situation, the court will often want a hearing in order to ensure the interests of the absent class members are protected. 

Motion to Change a Defendant’s Plea in a Criminal Case

In criminal cases, a defendant must usually enter a plea at the outset. The defendant is charged with specific crimes and must tell the court whether they plead guilty or not guilty. In some circumstances, the defendant may enter a plea of “no contest” or similar. A defendant may seek to change his or her plea where circumstances have changed. 

In some types of cases, a defendant may also be allowed to enter a conditional plea. This means the defendant is allowed to appeal certain issues at the outset, and, depending on the outcome, the defendant may then opt to change a guilty or no contest plea to not guilty and proceed to trial. 

Using Withdrawal to Change Forum or Venue

After an action is initiated, a plaintiff may find that it is preferable to proceed in a different type of court or in a different location. Under these circumstances, the plaintiff may file a motion to withdraw, which results in the lawsuit being terminated, in order to re-file elsewhere. For example, in bankruptcy proceedings, the party filing for bankruptcy may opt to move the proceeding from bankruptcy court to another court in order to proceed by way of jury trial instead of before a judge. 

However, parties must exercise particular caution with using the motion to withdraw tool in this way. For example, if a plaintiff files a lawsuit and it is assigned to a judge who is believed to be unsympathetic to the plaintiff’s issue, moving to withdraw and then re-filing elsewhere can be seen as “judge shopping,” a practice that is frowned upon and can result in sanctions against the attorney or even an order prohibiting the plaintiff from re-filing his or her lawsuit.

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