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Proper Substitution of Counsel

by merlin on August 13th, 2014
  • Sumo

This is not the entry that I intended to do earlier, but I have learned something and I know I need to share it with my readers, because it was NOT something I was aware of at all, and it is also something I know many other attorneys do not know, either.

In Georgia, for a Substitution of Counsel to be effective, it must be signed BOTH by the new attorney AND by the person themselves.  Otherwise, it will only add the name of another attorney to the list (and that previous attorney will still be on the hook for the representation, which certainly puts us at a disadvantage).

For your reference, the text of Georgia Uniform Superior Court Rule 4.3 on Withdrawal is below:

(1) An attorney appearing of record in any action pending in any superior court, who wishes to withdraw as counsel for any party therein, shall submit a written request to an appropriate judge of the court for an order of court permitting such withdrawal. Such request shall state that the attorney has given due written notice to the affected client respecting such intention to withdraw 10 days (or such lesser time as the court may permit in any specific instance) prior to submitting the request to the court or that such withdrawal is with the client’s consent. Such request will be granted unless in the judge’s discretion to do so would delay the trial of the action or otherwise interrupt the orderly operation of the court or be manifestly unfair to the client. The attorney requesting an order permitting withdrawal shall give notice to opposing counsel and shall file with the clerk in each such action and serve upon the client, personally or at that client’s last known address, a notice which shall contain at least the following information:

(A) That the attorney wishes to withdraw;

(B) That the court retains jurisdiction of the action;

(C) That the client has the burden of keeping the court informed respecting where notices, pleadings or other papers may be served;

(D) That the client has the obligation to prepare for trial or hire other counsel to prepare for trial when the trial date has been set;

(E) That if the client fails or refuses to meet these burdens, the client may suffer adverse consequences, including, in criminal cases, bond forfeiture and arrest;

(F) The dates of any scheduled proceedings, including trial, and that holding of such proceedings will not be affected by the withdrawal of counsel;

(G) That service of notices may be made upon the client at the client’s last known address, and,

(H) If the client is a corporation, that a corporation may only be represented in court by an attorney, that an attorney must sign all pleadings submitted to the court, and that a corporate officer may not represent the corporation in court unless that officer is also an attorney licensed to practice law in the state of Georgia;

(I) Unless the withdrawal is with the client’s consent, the client’s right to object within 10 days of the date of the notice.

The attorney seeking to withdraw shall prepare a written notification certificate stating that the above notification requirements have been met, the manner by which such notification was given to the client and the client’s last known address and telephone number. The notification certificate shall be filed with the court and a copy mailed to the client and all other parties. The client shall have 10 days prior to entry of an order permitting withdrawal or such lesser time as the court may permit within which to file objections to the withdrawal. After the entry of an order permitting withdrawal, the client shall be notified by the withdrawing attorney of the effective date of the withdrawal; thereafter all notices or other papers may be served on the party directly by mail at the last known address of the party until new counsel enters an appearance.

(2) When an attorney has already filed an entry of appearance and the client wishes to substitute counsel, it will not be necessary for the former attorney to comply with rule 4.3(a). Instead, the former attorney may file with the clerk of court a notice of substitution of counsel signed by the party and the former attorney. The notice shall contain the style of the case, the name, address, phone number and bar number of the substitute counsel. A copy of the notice shall be served on the substitute counsel, opposing counsel or party if unrepresented, and the assigned judge. No other or further action shall be required by the former attorney to withdraw from representing the party. The substitution shall not delay any proceeding or hearing in the case.

The notice may be in substantially the following form:

IN THE SUPERIOR COURT OF_COUNTY

STATE OF GEORGIA

SAM SPADE,

Plaintiff,

v.

DAVID ROBICHEAUX,

Defendant.

CIVIL ACTION

FILE NO. 99-CV-0000

NOTICE OF SUBSTITUTION OF COUNSEL

Please substitute (name of substitute counsel) as counsel for (name of party) in this case.

Substitute counsel’s address, phone number and bar number are as follows: ________

All further pleadings, orders and notices should be sent to substitute counsel.

This_day of_,_.

signature signature

Name of former attorney Name of party

Address Address Phone number Phone number

CERTIFICATE OF SERVICE

____________________________________________________________________

Your attention is drawn to paragraph (2).  It contains a typographical error, referring to paragraph (a), but it appears intended to refer to paragraph (1), instead.  More importantly, note that it places a burden on the attorney that previously represented the person to file a notice with the Clerk of Court stating affirmatively that they no longer represent the person because of a substitution of counsel, and have that affirmative notice signed by the person themselves.

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