LEO: Attorney - Withdrawal as Counsel LE Op. 1010
Attorney - Withdrawal as Counsel.
January 12, 1988
You advise that the Ninth District Committee has received nine complaints
involving six attorneys who have withdrawn from the representation of
claimants in black lung cases pending before the U.S. Department of Labor.
The attorneys have withdrawn from representation pursuant to the Rules of
Practice and Procedure for Administrative Hearings. 29 C.F.R. Section
18.34(g) states that "any attorney of record must file prior notice in
writing of intent to withdraw as counsel."
Disciplinary Rule 2-108(C) [ DR:2-108] of the Virginia Code of
Professional Responsibility, however, requires an attorney to give notice
of intent to withdraw as attorney of record and to receive permission of
You pose two questions relative to the above. First, you wish to know if
the state has been preempted from regulating the conduct of Virginia
attorneys practicing before federal administrative agencies. Second, you
ask if the state has not been preempted from regulating the conduct, do
the current rules of the Code of Professional Responsibility apply.
Your first question regarding preemption is beyond the jurisdiction of
With regard to your second question, if the Virginia Code of Professional
Responsibility is not preempted by federal law, then it must be determined
if DR:2-108 applies to the subject tribunal. DR:2-108(C) states that "
in any court proceeding, counsel of record shall not withdraw except by
leave of court after notice to the client of the time and place of a
motion of leave to withdraw. In any other matter, a lawyer shall continue
representation, notwithstanding good cause for terminating the
representation, when ordered to do so by a tribunal."
The definition section of the code defines tribunal as follows: "
'Tribunal ' includes all courts and all other adjudicatory bodies." "
Courts and all other adjudicatory bodies" are defined as subsets of
tribunals and are, therefore, considered separate entities. Thus, an
administrative hearing would not be considered a court proceeding. Based
upon this analysis, DR:2-108(C) would not be violated unless the
tribunal had given notice that it required court approval prior to any
attorney withdrawing from the administrative hearings.
Ethical Consideration 2-34 [ EC:2-34] states that "a decision by a
lawyer to withdraw should be made only on the basis of compelling
circumstances, and in a matter pending before a tribunal he must comply
with the rules of the tribunal regarding withdrawal" (emphasis added).
Since an administrative hearing would not fall under the guidelines for
withdrawal in a court proceeding as set forth in DR:2-108(C), the rules
for withdrawing from administrative law proceedings would be found in 29
C.F.R. Section 18.34(g). According to the facts you have submitted, 29
C.F.R. Section 18.34(g) was followed by the six attorneys who were the
subject of complaint.
Committee Opinion January 12, 1988