What is a counsel's Motion to Recuse?

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398. An attorney may be recused “[u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other.” Code Civ. Proc., § 284.

“The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows:

  1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes;
  2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”

Code of Civil Procedure, § 284.

Client’s Power to Discharge

“It has long been recognized in this state that the client’s power to discharge an attorney, with or without cause, is absolute. In discussing the unique relationship between attorney and client, this court stated that ‘The interest of the client in the successful prosecution or defense of the action is superior to that of the attorney, and he has the right to employ such attorney as will in his opinion best subserve his interest. The relation between them is such that the client is justified in seeking to dissolve that relation whenever he ceases to have absolute confidence in either the integrity or the judgment or the capacity of the attorney... The fact that the attorney has rendered valuable services under his employment, or that the client is indebted to him therefor, or for moneys advanced in the prosecution or defense of the action, does not deprive the client of this right.’” Fracasse v. Brent (1972) 6 Cal.3d 784, 790.

“As a general rule, a client has the right to replace his or her attorney at virtually any time with or without cause.” People v. Ortiz (1990) 51 Cal.3d 975, 983; People v. Courts (1985) 37 Cal.3d 784, 789–790; Fracasse v. Brent (1972) 6 Cal.3d 784, 790; Michelle K. v. Super. Ct. (2013) 221 Cal.App.4th 409, 449. “A party has the right to be represented by counsel of his or her choice. Therefore, the client’s right to recuse (substitute out) existing counsel is absolute. I.e., on proper notice to the existing counsel and to all other parties, the client is entitled to a court order substituting new counsel, or substituting the client in propria persona.” Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2016) ¶ 9:382.

Attorney’s Withdrawal

An attorney moving to be relieved as counsel under Code of Civil Procedure, section 284(2) must meet the requirements set out in California Rules of Court, rule 3.1362. To comply with rule 3.1362, the moving party must submit the following forms:

  1. Notice of Motion and Motion to be Relieved as Counsel;
  2. Declaration in Support of Attorney's Motion to be Relieved as Counsel; and
  3. Order Granting Attorney's Motion to be Relieved as Counsel.

Cal. Rules of Court, rule 3.1362(a), (c), (e).

The moving party must serve the aforementioned forms on the client and all other parties who have appeared in the case. Cal. Rules of Court, rule 3.1362(d).

Even if all of the requirements are met, “the court has discretion to deny an attorney’s request to withdraw where such withdrawal would work an injustice or cause undue delay in the proceeding.” Mandell v. Super. Ct. (1977) 67 Cal.App.3d 1, 4.

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Useful Examples
Recent Documents

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