Order Granting Withdrawal of Attorney Is Not Appealable

Tim Kowal March 14, 2022

No wonder the attorney in Elias v. Jensen (D4d3 Mar. 3, 2022 no. G060098) 2022 WL 620013 (nonpub. opn.) moved to withdraw: her client had “demoted [her] to co-counsel,” the client was filing documents under his own name, and the client had filed a State Bar complaint against her. So it is no wonder the Court of Appeal agreed with the trial court’s order allowing the attorney to withdraw. After all, “if Elias’s allegations against [the attorney] are true...Elias should not be represented by a conflicted attorney with whom he has a present disagreement.”

But why, then, did the Court of Appeal dismiss the appeal on nonappealability grounds, rather than just affirm on the merits?

While there are some good arguments that orders are not appealable, there are also some very good arguments that they are. Specifically, an order granting withdrawal (which is held nonappealable) is not different in kind from an order granting disqualification (which is appealable).

Order Granting Withdrawal of Counsel Is Nonappealable

First, an order granting an attorney’s motion to withdraw is not listed in the general appealability statute at Code of Civil Procedure section 904.1, or in the probate appealability statutes at Probate Code sections 1300 or 1304.

So the court next looked to the collateral-order doctrine. An order may be appealable if it (1) is final, (2) is collateral to the merits of the case, and (3) “direct[s] the payment of money by appellant or the performance of an act by or against him.” (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119.)

Here, the court held that an order granting an attorney's motion to withdraw does not direct any payment of money or the performance of any act, so it is not appealable. (Messih v. Lee Drug, Inc. (1985) 174 Cal.App.3d 312, 315 (Messih); see also Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1236 [order denying motion to substitute one attorney for another is not an appealable order].)

That was all the analysis the court furnished.

But a Withdrawal Order Is Akin to Injunction Orders and Disqualification Orders, Both of Which Are Appealable

It is well-settled that orders granting attorney disqualification are appealable. “The California Supreme Court has given two reasons why such an order is appealable: First, it is an injunctive order (see Code Civ. Proc., § 904.1, subd. (a)(6)); second, it is a final order collateral to the main action.” (Machado v. Superior Court (2007) 148 Cal.App.4th 875, 882 (citing Meehan v. Hopps (1955) 45 Cal.2d 213, 215-217).

When a court issues an order that compels the party to hire a new attorney, that is akin to an injunction, and it is also an act which satisfies the Supreme Court’s Sjoberg test for a collateral order. (Machado, supra, 148 Cal.App.4th at p. 882.)

So how can the courts maintain, with any logical consistency, that orders granting disqualification are appealable, but orders granting withdrawal are not?

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"A judge is a law student who grades his own papers."

— H.L. Mencken

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

Order Granting Withdrawal of Attorney Is Not Appealable

Order Granting Withdrawal of Counsel Is Nonappealable

But a Withdrawal Order Is Akin to Injunction Orders and Disqualification Orders, Both of Which Are Appealable

Related Posts:

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"A judge is a law student who grades his own papers." — H.L. Mencken

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187