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Conditions on attorney’s withdrawal were ‘unjust’


An Orange County family law attorney will finally be allowed to withdraw from a now-settled contract dispute after the North Carolina Court of Appeals ruled that the trial judge abused his discretion by denying her motion to withdrawal on the grounds that her soon-to-be-former client lives overseas and would be difficult to communicate with if she withdrew.

Melissa Averett represented Gilles Wicker in a suit brought by Wicker’s ex-wife alleging that he had breached a property separation agreement. The Wickers settled their dispute, and in October 2017, Orange County District Court Judge Joseph Buckner entered a consent order providing that, among other things, the Wickers could not communicate directly with each other and instead needed to communicate via their attorneys or designated agents.

Six months later, Averett sought to withdraw as counsel on the ground that her representation of her client had ended and they hadn’t agreed on new terms of engagement. Buckner denied the motion, but said that he would allow it if Wicker retained a new attorney or appointed an agent or posted a bond.

But Judge Richard Dietz, writing for a unanimous Court of Appeals panel in a Dec. 3 opinion, reversed that order, saying that it imposed conditions on Averett’s withdrawal that were unsupported by the evidence and put Averett and her client in an “unjust” position.

Dietz noted that many of the typical reasons justifying withdrawal were present in the case. Both Averett and Wicker wanted to end the representation, there was no evidence that a withdrawal would prejudice Wicker in any way, and there was no ongoing litigation or work to be done before the trial court since the parties had settled their dispute and the court had entered a consent order. All that remained was ongoing compliance with that order, whose terms continue indefinitely.

Dietz said that there was no evidence that Wicker had failed to comply with the consent order or was likely to do so in the future, but the terms of withdrawal imposed by the court were nevertheless directed at assisting the plaintiff in the event that he should ever do so someday.

“As a result, the court’s order forces both Defendant and Averett to continue in a legal representation neither wants, or forces Defendant to take actions that, so long as he complies with the order, are both costly and entirely unnecessary,” Dietz wrote. “Thus, on the record before this Court, the conditions imposed in the trial court’s order are unsupported by evidence, would impose an unfair burden on Defendant in order for Averett to withdraw, and are thus outside the court’s discretion.”

Dietz said that the appeals court was not imposing any requirement that trial courts conduct an evidentiary hearing or make any specific fact findings when ruling on a motion to withdraw. In this case, the order at issue was unusual in that it conditioned withdrawal on the client taking steps to assist the opposing party in the event of a future violation of a final court order. Conditions of that sort must be supported by the facts on the record, Dietz wrote.

Since the consent order required the parties to communicate through an agent, the trial court was free to issue an order requiring Wicker to identify one—but it could not, the court said, preclude Averett from withdrawing from the case until he did so.

Becky Watts of Collins Family Law Group in Monroe represented Averett. Leonard Jernigan of Raleigh and Joe Hackney of Epting & Hackney in Chapel Hill represented the plaintiff in the case, Cheryl Jernigan Wicker. 

The nine-page decision is Wicker v. Wicker (Lawyers Weekly No. 011-320-19). 

Follow David Donovan on Twitter @NCLWDonovan

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