Getting in — and out — of the game

By Judge Deana Seymour, Memphis

Deana Seymour

Have you noticed the recent popularity of escape rooms? You know – those games where a team, confined to a room, studies the clues and tries to escape? If the team follows the clues, the escape occurs without a hitch. But sometimes a missed clue along the way prevents release.

Similarly, when an attorney engages in representation of a party, the rules of the Court of Workers’ Compensation Claims attach to that relationship. The rules require that the attorney file a notice of appearance. It should be noted that an attorney’s signing of any document filed with the clerk or the Bureau of Workers’ Compensation satisfies the notice of appearance requirement.

enterThe attorney’s representation commences by filing a petition for benefit determination or at any time afterward. However, resolution of the dispute for benefits begins by filing a petition. A mediator is assigned, and alternative dispute resolution takes place. If the matter isn’t resolved, the mediator files a dispute certification notice with the clerk that identifies the issues for an assigned judge to decide.

If during representation, a problem arises and the attorney wants or needs to leave the case, he must follow the rules to do so.

Importantly, a lawyer cannot relinquish his duties to his client at any time without filing a motion to withdraw supported by his affidavit in compliance with Rule 0800-02-21-.04(3) and obtaining an order from the judge allowing him to withdraw. Simply advising your client after a failed mediation that you’re done does NOT relieve you from your obligation to that client or the Court. You must file a motion to withdraw.

The rule requires the attorney to give the client reasonable notice of the motion, meaning the motion must be set for hearing before the assigned judge. The attorney must attach an affidavit containing the last known mailing address, email address, telephone number and a declaration that the attorney notified the client of both the effects of the withdrawal and any deadlines and scheduled proceedings. The judge will likely conduct a hearing before ruling, unless the judge determines a hearing is unnecessary.

Then and only then the attorney may effectively and legally “leave the room” if the judge allows. You can’t just walk out.

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2 thoughts on “Getting in — and out — of the game

  1. Tony Farmer says:

    The rule you have referred to and the language quoted raises issues that could involve Rule 8 of the Rules of the Tennessee Supreme Court in that “the effects of the withdrawal” if read literally may border on disclosure of confidential matters or other issues that could prejudice the client. What are the “effects of withdrawal” other than the fact that a particular lawyer will no longer be the representative of the party that you would expect to be presented to the Court?

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  2. Brian Dunigan says:

    This blog entry assumes, of course, that a withdrawal of representation occurs while an action is actively pending before the court. The PBD commences the action, but it does not necessarily commence the representation, just like adjudication of the PBD does not necessarily conclude the representation. There are many circumstances where an attorney might be retained but then withdraw from representation before a PBD is filed to formally commence an action. Likewise, an attorney might want to withdraw representation after the action is concluded (for example, after a final order is entered or after a nonsuit and order of voluntary dismissal is entered). In those circumstances, Rule 1.16 of the Rules of Professional Conduct would apply, but there would not really be a mechanism for the attorney to obtain an order from the court giving him leave to withdraw from the representation.

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