August 15, 2012

Attorney?s Withdrawal Of Appearance; Admission Of Non-Resident Attorney

Withdrawal of Attorney Representation.  The Indiana Supreme Court amended Ind. Trial R. 3.1 effective January 1, 2012, and added Trial Rule 3.1(H) which provides a procedure by which an attorney may withdraw his representation of a client.  Trial Rule 3.1(H) should be read together with Professional Conduct Rule (“RPC”) 1.16.

RPC 1.16 recognizes a mandatory and optional basis for withdrawal. Withdrawal is mandatory when the client demands that his attorney engage in conduct which is illegal or a violation of the Rules of Professional Conduct, the attorney is discharged, or the attorney suffers a physical or mental condition that impairs his ability to represent the client. Withdrawal is optional where withdrawal can be accomplished without imposing a material adverse effect on the client’s interests, the client persists in a course of conduct the attorney finds criminal or fraudulent, the client insists on a course of action with which the attorney has a fundamental disagreement, the client does not pay his legal bill or the representation imposes an unreasonable financial burden on the attorney, or other good cause exists for withdrawal. Mandatory and optional withdrawals are discussed more fully in the Comments to RPC 1.16.

Trial Rule 3.1(H) requires the withdrawing attorney to send the client a written notice of intent to withdraw at least ten (10) days before filing the motion. The motion should allege either the attorney has satisfied the terms and conditions of his agreement with the client, or withdrawal is required/permitted by RPC 1.16. The motion must certify the last known address and telephone number of the attorney’s client, and attach to the motion a copy of the notice of intent that was sent to the client. Trial R. 3.1(H) certification is subject to the confidentiality provisions of Trial R. 3.1(A)(8) and (D).  In withdrawing an appearance, RPC 1.16(d) makes clear an attorney must take “reasonably practicable” efforts to protect the interests of the client.

The trial court shall grant a motion to withdraw representation unless it specifically finds withdrawal is not reasonable or consistent with the efficient administration of justice. Trial R. 3(H).

Admission of Non-Resident attorney  to appear and participate in an Indiana action: There are two ways in which an out-of-state attorney may temporarily practice law in this State.  

      (1)    Temporary or limited representation.  A non-resident attorney may represent a party in an Indiana matter on a temporary basis or a basis that is limited in scope. The attorney must file a notice of temporary or limited representation in accordance with Trial R. 3.1(I). The notice should identify the client and each attorney representing the client, describe the nature and scope of the temporary or limited status, and state the date the temporary status will end. The Indiana court is not required to enter an order approving this limited representation but, at the completion of the representation, the non-resident attorney must file a notice of completion with the clerk of court.
      (2)    Admission Pro Hac Vice.  A non-resident attorney may appear in an Indiana action as counsel for a party.  This procedure, commonly known as a “pro hac vice” admission, is governed by Indiana Admission and Discipline Rule (“ADR”) 3(2). This Rule was amended effective January 1, 2012.

ADR 3(2) imposes several important requirements. The non-resident attorney only can be admitted where an Indiana attorney is already counsel of record and agrees to serve as co-counsel. The non-resident attorney must file a petition and pay an annual registration fee to the Clerk of the Indiana Supreme Court. Unless admitted in accordance with ADR 3(2), the attorney may not appear in the Indiana action and any papers filed by him are a nullity. After the trial court grants the petition to admit the non-resident attorney, within 30 days of that order, the attorney must file a Notice of Temporary Admission with the Clerk of the Supreme Court. Finally, the Indiana co-counsel must sign all pleadings and papers filed in the Indiana action, and signature of co-counsel constitutes a certification there is good ground to support the signed document and it is not interposed for purpose of delay.  

These rules are discussed more fully in Stephen E. Arthur, 22 Indiana Civil Trial Practice (2d ed.) §15.1 et seq., and Stephen E. Arthur, 22B Indiana Civil Trial Rule Handbook (2012 ed.) §3.1.2-4.


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