Does an attorney have to file a motion to be relieved as counsel even if they send a letter to the client and the courts stating the reasons?
She mailed me a letter stating that she wanted to be relieved as counsel as I couldn't afford to retain her services and I didn't object. But then I just received a copy of a motion in the mail with a hearing date on it. What can I do to just relieve her? Have her fill out a 'sub of attorney form'?
Yes. Unless the client voluntarily signs a Substitution of Attorney form which is then filed with the Court, the attorney must file a motion to be relieved as counsel of record. Sending a letter to the client and courts would not suffice.
A notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) shall be directed to the client and shall be made on the Notice of Motion and Motion to Be Relieved as Counsel (Judicial Council Form MC-051) pursuant to California Rules of Court, Rule 3.1362(a).
The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel (Judicial Council Form MC-052). The attorney's declaration shall state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent (i.e. Substitution of Attorney form) under Code of Civil Procedure section 284(1). (Cal. Rules of Court, Rule 3.1362(c).)
The notice of motion and motion and the declaration must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service or mail.
If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that either (1) the service address is the current residence or business address of the client or (2) the service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days prior to the filing of the motion to be relieved. “Current” means that the address was confirmed within 30 days prior to the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client's last known address and was not returned will not, by itself, be sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) shall apply. (Cal. Rules of Court, Rule 3.1362(d).)
The proposed order relieving counsel shall be prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel (Judicial Council Form MC-053) and shall be lodged with the court and served on the client with the moving papers. The order shall specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order shall be served on the client and on all parties that have appeared in the case. The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, Rule 3.1362(e).)
Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
14 lawyers agree
Consumer Protection Attorney
Once the attorney has entered his or her appearance with the Court, the attorney may only be relieved as counsel with permission of the Court or the client. Under some circumstances, the permission of the client isn't even enough. Attorney Chen provides very valuable information, above.
To discuss this answer with me in more detail, please call (805) 244-5291 or email me at firstname.lastname@example.org. This answer is intended to provide general information only. It does not create an Attorney-Client relationship, nor should it be construed as legal advice or an opinion on specific situations. Eric D. Ridley is only licensed to practice law in California.
9 lawyers agree
Divorce / Separation Lawyer
The court must issue an order relieving the attorney as counsel for you unless you and your lawyer sign a form entitled Sustitution of Attorney and file it with the court indicating that you will now act as your own attorney.
6 lawyers agree