Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
What reasons can an attorney use to withdraw from representing a party in a Florida family law case? Bases for withdrawal are listed in Rule 4-1.16 of the Rules Regulating the Florida Bar. Usually, good cause must be shown, and this includes a failure of the client to pay for the lawyer’s services. Withdrawal of a lawyer was an issue in the case Elsawaf v. Eslawaf, 5D2023-0748 (Fla. 5th DCA May 10, 2024).
In this divorce case, the former husband’s lawyer filed a motion to withdraw the day before the final trial, alleging the former husband had not met his financial obligations to the lawyer. This motion was not noticed for hearing, but on the morning of trial, the court heard the motion and granted it, leaving the former husband without a lawyer for trial. The former husband’s request for continuance of trial was denied, and trial proceeded to a final judgment. The former husband appealed.
The appellate court reversed, noting that the ground relied upon by the former husband’s lawyer to withdraw made withdrawal optional under the rules. Thus, the court held “Former Husband’s counsel’s motion to withdraw did not allege any of the grounds under rule 4-1.16(a) when withdrawal from representation would be mandatory. Thus, turning to rule 4.1- 16(b) when withdrawal from representation is optional, as it was here, withdrawal is permissible provided it ‘can be accomplished without material adverse effect on the interests of the client.’ In the present case, we conclude that the court-allowed withdrawal of counsel at the commencement of trial resulted in a material adverse effect upon Former Husband.”
The court concluded “Former Husband, a layman, was essentially placed on notice by his counsel’s motion to withdraw, filed approximately twenty hours before the start of trial, that he faced the possibility of going to trial without the attorney who had been representing him over the preceding nine months. We have no hesitancy in holding that such circumstances violated Former Husband’s right to due process. Garden and rule 4-1.16(c) make clear that even if good cause exists for withdrawal, a trial court may nevertheless require an attorney who has not timely moved to withdraw to continue with representation. The trial court erred in not doing so here.”
The case was remanded for a new trial. Schedule your meeting with a Miami divorce lawyer to understand how the law may apply to the facts of your case.