Annotation 1-12 - OATH

Office of Administrative Trials and Hearings

Independent and Impartial Administrative Law Court


Chapter I - Subchapter B

Chapter I - Subchapter A
Chapter I - Subchapter B
Chapter I - Subchapter C
Chapter I - Subchapter D
Chapter II - Subchapter A
Chapter II - Subchapter B Reserved
Chapter II - Subchapter C
Chapter II - Subchapter D
Chapter II - Subchapter E

Chapter I - Subchapter A

Chapter I - Subchapter B

Chapter I - Subchapter C

Chapter I - Subchapter D

Chapter II - Subchapter A

Chapter II - Subchapter B Reserved

Chapter II - Subchapter C

Chapter II - Subchapter D

Chapter II - Subchapter E


§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).

Leave to withdraw as counsel not required when a notice of appearance was not filed. Health & Hospitals Corp. v. Brown, OATH Index No. 1902/23 (July 6, 2023).

Even if client does not appear at trial, an attorney who has filed a notice of appearance needs permission from the ALJ to withdraw from representation. Health & Hospitals Corp. (Coler-Goldwater Specialty Hospital) v. Reynolds, OATH Index No. 1440/13 (June 4, 2013).

Withdrawal of Counsel

APPLICATIONS GRANTED

At the start of trial, ALJ granted union counsel’s motion to be relieved as respondent’s counsel. Based on counsel’s representations that respondent had stated his desire to retain new, Spanish-speaking counsel and had stopped communicating with her, ALJ found no apparent prejudice in granting the unopposed motion to withdraw as respondent’s counsel. Dep’t of Social Services (Dep’t of Homeless Services) v. Pena, OATH Index No. 874/24 (Sept. 3, 2024).

Motion granted after five days of trial where there were irreconcilable differences, the client consented, and the ALJ was assured that granting the motion would not cause significant and unnecessary delays. Proceedings stayed for 30 days for respondent to secure new counsel. Matter of Various Tenants of 5-7 Mercer Street, OATH Index No. 2445/19, mem. dec. (Aug. 9, 2023).

Motion granted at the start of trial, in respondent’s absence, where respondent has ignored counsel’s repeated efforts to communicate. Dep’t of Correction v. Gamble, OATH Index No. 194/22 (July 27, 2022); Dep’t of Social Services (Dep’t of Homeless Services) v. Brown, OATH Index No. 2083/23 (Aug. 1, 2023); Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v. Alicea, OATH Index No. 1531/19 (Sept. 11, 2019); Triborough Bridge & Tunnel Auth. v. McDuffy, OATH Index No. 1737/17 (June 23, 2017).

Unopposed motion granted based on failure to cooperate or communicate and failure to pay attorney’s fees. ALJ also found that granting the motion would not materially prejudice respondent, as the trial was more than two months away. Dep’t of Housing Preservation & Development v. Balkany, OATH Index No. 599/21, mem. dec. (Dec. 7, 2021).

Motion granted based upon respondents’ failure to communicate with attorney, and failure to pay attorney’s fees. Granting the motion would not prejudice respondents, as the trial was several months away, no discovery had taken place, and respondents will have ample time to seek new counsel. Proceedings stayed for 60 days to allow respondents to seek new counsel. Dep’t of Consumer Affairs v. Mr. Coco 162 Inc. d/b/a Mr. Coco and Booyoung Cheong, OATH Index No. 1672/20, mem. dec. (Dec. 30, 2020).

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

Counsel’s affidavit that his client agreed to the withdrawal, without more, is insufficient to establish consent. Motion denied where counsel presented no independent evidence, in the form of an affidavit by respondent or by having respondent appear, to establish that respondent consented to the withdrawal request, or that he understood the consequences of his attorney’s withdrawal, or that he agreed with his counsel’s justification. Motion also denied as untimely where counsel delayed submitting the motion until the day of trial, and because granting the motion would lead to substantial delays to the long-running proceeding. Dep’t of Buildings v. Rexhepi, OATH Index No. 0002/21 (Sept. 8, 2023), adopted, Comm’r Dec. (Sept. 12, 2023).

Counsel’s withdrawal motion based on respondent’s failure to pay for services denied where counsel represented respondent throughout the proceeding, including a three-day trial, and all that remained was the submission of post-trial briefs. ALJ determined that respondent would be prejudiced by withdrawal at that late stage of the proceeding. Dep’t of Housing Preservation & Development v. Ben Tov, OATH Index No. 2437/19 (June 4, 2020) (letter to counsel).

Contested motion based on lack of cooperation and a breakdown in communication denied. Granting the motion would substantially prejudice respondent, who stated she was unable to hire a new attorney and did not wish to represent herself. Based on pre-trial conversations, ALJ also found that while respondent and her attorney had some differences of opinion, there was not an irreconcilable breakdown of communication. Had counsel’s motion been granted, respondent would have been without the assistance of counsel while facing charges that she was psychologically unfit to work. Police Dep’t v. A.A., OATH Index No. 2183/14 (June 30, 2015).

Motion made at the start of trial denied absent showing of client’s consent. Dep’t of Health & Mental Hygiene v. The Amelio Russo Civic Ass’n, Inc., OATH Index No. 1133/14 (Apr. 25, 2014).

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

APPLICATION GRANTED

Under subsection (b), requests made less than 20 days before hearing require ALJ approval. Substitution request made on the day of the hearing granted with opposing counsel’s consent. Matter of Gareza, OATH Index Nos. 2061/12 & 760/13 (Dec. 12, 2012), accepted in part, rejected in part, Loft Bd. Order No. 4243 (Feb. 20, 2014).

Substitution application granted, without objection, where counsel represented that he was prepared to proceed with the trial as scheduled if given time to confer with his client. Human Resources Admin. v. Battle-Black, OATH Index No. 2272/13 (Sept. 10, 2013).

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).