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Chapter I - Subchapter B

§1-12 Withdrawal and Substitution of Counsel.

Purposes of Rule

Where their client has communicated that they no longer wish to be represented, an attorney who has filed a notice of appearance must make an application to the OATH tribunal to withdraw from representation. The requirement has several purposes, including protecting all parties’ rights, monitoring and regulating the practice of the bar before this tribunal, ensuring expeditious adjudication, and efficiency. Dep’t of Correction v. LaSonde, OATH Index No. 2526/11 (Aug. 18, 2011), adopted, Comm’r Dec. (July 21, 2011).

The requirement that counsel seek leave to withdraw has several purposes, including protecting all parties' rights, monitoring and regulating the practice of the bar before the tribunal, ensuring that adjudication proceeds expeditiously and in an orderly fashion, and protecting the public interest in efficient application of this tribunal's resources. Dep't of Correction v. Lewis, OATH Index No. 1316/95, mem. dec. (May 31, 1995).

Applicability of Rule

An attorney who has appeared pursuant to section 1-11 of these rules may not unilaterally withdraw. However, because not all Loft Law cases are adjudicated before this tribunal, withdrawal of counsel before referral of the case to this tribunal is not governed by this tribunal's rules. Matter of Ancona, OATH Index Nos. 116/96, 621/96, 623/96 (Dec. 8, 1995), adopted, Loft Bd. Order Nos. 1904, 1906, 1909 (Jan. 24, 1996).

Withdrawal of Counsel

APPLICATIONS GRANTED

Application to withdraw from representation granted where client refused attorney’s requests for her input or assistance. Health & Hospitals Corp. (Coler-Goldwater Specialty Hosp. and Nursing Facility) v. Reynolds, OATH Index No. 2713/10 (Jan. 20, 2011), adopted, Hosp. Determination (Feb. 9, 2011).

In a telephone conference call, in keeping with rule 103(A)(8) of the Rules of Conduct for Administrative Law Judges and Hearing Officers of the City of New York, Administrative Law Judge explained to respondent her right to be represented by an attorney and the risks of proceeding self-represented as well as some of the procedural aspects that she would be responsible for during the proceedings. Respondent indicated that she wanted to represent herself because she was in the best position to address the charges in the fullest and clearest manner. Administrative Law Judge also advised respondent that she would be required to follow the rules and rulings of the tribunal and had to conduct herself in a civil manner. Respondent stated that she understood and wanted to proceed self-represented. Accordingly, attorney’s request to withdraw as counsel was granted. Dep’t of Correction v. LaSonde, OATH Index No. 2526/11 (Aug. 18, 2011), adopted, Comm’r Dec. (July 21, 2011).

Withdrawal of counsel granted based on irreconcilable differences between attorney and client. 13 East 17th Street Tenants v. 13 East 17th Street, LLC, OATH Index Nos. 1343/03, 1357/03 & 1358/03, mem. dec. (Apr. 29, 2005).

Administrative law judge granted attorney's application to withdraw based on client's consent and the preliminary stage of the proceeding. Matter of Rosario, OATH Index No. 1692/04, mem. dec. (Aug. 31, 2004).

APPLICATIONS DENIED

An attorney who has filed a notice of appearance may not withdraw from representation without the permission of the client or as delineated in the Code of Professional Responsibility. A motion to withdraw based on the respondent's failure to appear at the hearing and the attorney's inability to contact him was denied when the ALJ found no indication that the attorney had taken steps to avoid prejudice to the respondent, including giving due notice of her intention to withdraw. Health & Hospitals Corp. (Lincoln Medical & Mental Health Center) v. Wolf, OATH Index No. 2153/08 (June 3, 2008), adopted, Senior Assoc. Executive Director's Dec. (July 9, 2008).

Counsel's motion to withdraw, made four days before scheduled completion date in protracted litigation, was denied. Matter of Slotkin, OATH Index No. 690/06 (May 29, 2007).

In an employee disciplinary proceeding at OATH, the union is not a party, and counsel appears as attorney for the employee. Therefore, the attorney's motion to withdraw from hearing is governed by OATH's rule of practice and the lawyer's Code of Professional Responsibility, not federal, state or local labor law. Health & Hospitals Corp. (Harlem Hospitals Center) v. Norwood, OATH Index No. 143/05, mem dec. (Mar. 7, 2005). ALJ rejects argument by union-retained counsel that he should have been permitted to withdraw because he was instructed by the union to withdraw from the proceeding since the employee failed to appear at the scheduled hearing and that the union, and not the employee, is his client.

Where counsel delayed seeking leave to withdraw from representation of the petitioner until too late for the petitioner to retain new counsel in time for trial, the motion to withdraw was denied notwithstanding fee dispute between counsel and client. Matter of SMJ Management Corp., OATH Index No. 1505/95 (Nov. 21, 1995), adopted, Loft Bd. Order No. 1902 (Jan. 4, 1996), aff'd sub. nom. SMJ Management Corp. v. New York City Loft Bd., Index No. 103595/96 (Sup. Ct. N.Y. Co. Feb. 6, 1997).

Counsel's bare statement that some other attorney, unknown to counsel, had taken over representation of the respondent, is an insufficient basis for granting leave to withdraw from representation of the respondent. Dep't of Correction v. Lewis, OATH Index No. 1316/95, mem. dec. (May 31, 1995).

Absent any mandatory basis for withdrawal of counsel under the Code of Professional Responsibility, and absent any persuasive reason for the respondent's last-minute desire to replace counsel, who had represented him through 15 months of pre-trial proceedings, counsel's application for leave to withdraw was denied. Dep't of Correction v. Rebecca, OATH Index No. 151/94, mem. dec. (Oct. 21, 1993).

Pursuant to this rule, an attorney who has filed a notice of appearance shall not withdraw from representation without the permission of the administrative law judge, on application. At the end of a second day of trial, respondent's counsel requested the tribunal's permission to withdraw from representing respondent. The application was denied. On the third day of trial, when respondent indicated that she no longer wished that the attorney represent her, the administrative law judge relieved the attorney from representing respondent and the attorney withdrew. Dep't of Correction v. Shepheard, OATH Index No. 965/03 (Nov. 6, 2003).

PROCEDURE

Having previously appeared in the proceeding by attending the pre-trial conference, counsel must seek permission of the administrative law judge in order to withdraw from representing a party scheduled for a hearing. Matter of Wilson, OATH Index No. 1573/97 (Mar. 20, 1998), adopted, Loft Bd. Order No. 2280 (Sept. 24, 1998).

Substitution of Counsel

APPLICATIONS DENIED

Counsel for respondent sought to withdraw on the third and final day of trial based solely on respondent's desire to change counsel. In denying the motion, the administrative law judge found that a simultaneous request to adjourn the proceedings in order for new counsel to prepare demonstrated that substitution would substantially delay the proceedings. The matter had been pending for several months, and more than one month between the second and third day of trial had elapsed. No apparent reason existed that substitution could not have been made earlier so that new counsel would have been ready for the final trial date, or that respondent could have found new counsel who was available on that date. Dep't of Sanitation v. Garcia, OATH Index No. 1140/98 (May 1, 1998).