Just as you have a right to fire the attorney representing you in immigration matters, your attorney can also terminate the attorney-client relationship. That comes as an unpleasant surprise to some clients, of course. However, your attorney cannot drop you as a client without good cause.
When an attorney drops or "fires" a client, the attorney is deemed to be withdrawing from the person's case. This article will cover the different types of attorney withdrawal found in attorneys’ rules of professional conduct, how withdrawal rules can differ depending on the government agency handling the immigration matter, and how to protect your rights after your attorney has decided to withdraw.
When an Attorney Must or Can Withdraw From an Immigration Case
In some situations, an attorney has no legal choice but to withdraw from someone's legal matter. It's called a “mandatory” withdrawal. In other cases, the attorney may choose to do a voluntary withdrawal.
When Attorney Withdrawal Is Mandatory
Your attorney has no choice and must (under the governing ethical rules) withdraw from your case in any of the following circumstances:
- If representing you will result in a violation of the rules of professional conduct or other law. For example, if you are in immigration court and intend to raise a defense that your attorney knows is based upon a lie or falsehood, the attorney must withdraw.
- If your attorney’s physical or mental condition prevents properly representing you. An attorney who has, for instance, been hospitalized due to an accident or struggling with alcoholism must withdraw.
- If a conflict of interest arises under which the attorney can no longer provide competent representation. This is especially common in immigration law cases where one attorney starts out representing both the U.S. citizen and immigrant spouse or both the employer and immigrant employee. If a conflict of interest arises (for example, if one spouse ends up charged with domestic violence while a green card application is pending), the attorney might have to withdraw from representing one or both parties.
When an Attorney Can Voluntarily Withdrawal
A lawyer may rely on personal judgment to decide whether to withdraw in these circumstances:
- If withdrawal can be accomplished without material adverse effect on the client's interests. This means that, if the attorney can stop representing you without damaging your chances for success on your case, withdrawal is allowable. Mere inconvenience to you from finding another attorney would not prevent the attorney from withdrawing. However, if your attorney were to try to withdraw three days before a request for evidence was due or a hearing scheduled, that would negatively affect your chances of success and would not be permitted.
- If you tried to force the attorney to pursue a frivolous, or baseless, claim. For example, most courts would deem it frivolous for a Canadian citizen to file for asylum in the United States. Expecting your attorney to go along with this or any lie would be grounds for withdrawal.
- If the attorney discovers that you have used their services to commit or attempt a criminal act or fraud, or if you persist in a course of action involving your attorney’s services that the attorney reasonably believes is fraudulent. The rules governing attorney conduct do not force an attorney to be an unwilling accessory to a crime, such as marriage fraud.
- If you and your attorney have a fundamental disagreement as to what direction your case should take. While your attorney cannot withdraw over a simple disagreement on case strategy, terminating representation is okay if the attorney considers your course of action morally repugnant or has another strong disagreement with you.
- If you fail to fulfill an obligation to your attorney and you have been warned that your attorney will withdraw unless you fulfill your obligations. The most common example of this is when a client fails to pay attorney fees. However, simply falling behind on payments does not justify attorney withdrawal. Your attorney should work with you to create alternative fee arrangement and give you sufficient warning of their intention to withdraw. Nonetheless, if you choose not to pay and you breach the terms of your engagement agreement, your attorney will be justified in terminating representation. Even if your lawyer does not withdraw, they can later bring a lawsuit against you for unpaid fees.
- If representing you will result in an unreasonable financial burden or is unreasonably difficult for your attorney. Your attorney is not required to go into significant debt in order to represent you. If, for example, you decide to move cross-country while your case is pending and refuse to pay your attorney’s travel costs while still expecting that the attorney attend your hearings, your attorney may be able to withdraw.
- If other good cause for withdrawal exists. This is a catchall for when your attorney might have another legitimate reason to withdraw not explicitly covered by the rules of professional conduct.
Withdrawal Procedures Depend on Which Government Agency or Tribunal Is Handling Your Case
The process for attorney withdrawal can differ depending on what agency is adjudicating (making a decision on) your case.
If you have an application currently pending before United States Citizenship and Immigration Services (“USCIS”) or the National Visa Center (“NVC”), then your attorney will be able to terminate representation with relative ease. While the controlling federal regulations discuss attorney withdrawal only in the case of a substitution of counsel, in practice neither USCIS nor the NVC will deny a written notice of withdrawal from your lawyer.
Once your lawyer notifies the relevant government agency, it will start forwarding correspondence to you, so make sure your address and contact information are up to date. If you retain new counsel, that attorney will notify the agency of representation by submitting a Form G-28 Notice of Entry of Appearance.
By contrast, if you have a court case or appeal pending, your attorney will not be able to withdraw without permission of the immigration court judge or the Board of Immigration Appeals (“B.I.A.”). Before withdrawing, your attorney must file a motion to do so with the tribunal. In the motion, your lawyer must show that they notified you or attempted to notify you of the request to withdraw and show evidence that you are aware of any pending deadlines in your case.
Even if your attorney can show this, if your individual hearing or appeal deadline is approaching soon, then the court or B.I.A. will likely deny the motion. Withdrawing from immigration court or the B.I.A. is much more difficult for your attorney.
If you are in immigration court and your attorney withdraws, you might also be able to request a continuance for additional time to find new counsel. Whether that request is granted or not is at the discretion of the immigration judge.
Protect Your Rights After Your Immigration Attorney Withdraws
If your immigration attorney has withdrawn or is planning to withdraw from your case, you can take steps to ensure that your rights are protected. Your attorney must give you advance notice. The attorney must also cooperate with any new counsel you find, and should be willing to forward documentation to your new lawyer.
Your attorney also has a continuing duty to maintain confidentiality, except to the extent that they might need to reveal information in a lawsuit to recover unpaid fees owed. Your attorney must refund any portion of the legal fees or retainer you paid that's in excess of what the attorney earned over the course of representing you.
Be sure to request a complete copy of your case file from your attorney. If there is no fee dispute and you have paid your former attorney in full, then you own your case file, and the attorney should return it upon your request. Your attorney may charge you a cost to copy the file. If so, that cost should be listed in the retainer agreement you initially signed.
If, however, your attorney claims that you still owe legal fees, the situation is more complex. In some jurisdictions, your attorney may be able to assert a claim to your file against the unpaid fees, known as a retaining lien. Not all jurisdictions allow this, and even in those that do, it's considered an extreme solution. It might not be permitted, particularly if you would suffer undue prejudice from denial of your file (for example, if your case is still ongoing).
In the worst-case scenario, if you believe your attorney withdrew and wrongfully withheld unearned fees or seriously prejudiced your case, you may file a grievance with your state or local bar association.