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Rule 44B Withdrawal of Counsel

IX. General Provisions

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Rule Text

Counsel may withdraw from a case by serving notice of withdrawal on his or her client and the State and filing the notice, provided that such notice is accompanied by notice of the appearance of other counsel. Unless this condition is met, counsel may withdraw from the case only by leave of court. A court order relieving counsel does not become effective until either new counsel is appointed or has entered an appearance, or the court determines that the defendant has expressly waived the right to counsel, impliedly waived that right by conduct, or forfeited that right.

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Committee Notes

Advisory Note – May 2017

The amendment, in conjunction with the amendment of April 2017, makes the following changes to the final sentence of Rule 44B.

First, it makes the final sentence applicable to retained counsel as well as appointed counsel.

Second, it includes the entry of an appearance by new counsel as a way in which a court order relieving counsel, whether appointed or retained, becomes effective.

Third, in addition to an express waiver of the right to counsel by a defendant, it adds a court determination of implied waiver by conduct or by forfeiture as two additional ways in which a court order relieving counsel becomes effective. See State v. Nisbet, 2016 ME 36, 134 A.3d 840.

Committee Advisory Note [December 2014]

The Rule parallels the content of Rule 44B of the Maine Rules of Criminal Procedure but differs in the following respects.

First, the letter “s” in the word “state” is capitalized because the word is referring to the “State” as a party.

Second, a second condition for withdrawal by counsel—namely, “In a case when counsel is assigned to represent an indigent defendant, the other counsel must be designated by the Maine Commission on Indigent Legal Services as eligible to receive assignments for the type of a case involved”—is omitted as unnecessary. This omission necessitates that the words “this condition is” replace the words “these conditions are” in the next sentence.

Third, the final sentence replaces the word “assigned” with the word “appointed” and omits the words “in accordance with Rule 44, subdivision

(a) (1)” as unnecessary.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note—1989

[M.R. Crim. P. 44B.] New Rule 44B contains with minor alterations the language of former Rule 63. It also contains the requirement that counsel appointed in the District Court continue to represent a defendant until counsel is appointed in the Superior Court. This language is taken from Rule 44(a)(1).

Advisory Note—July 2010

The amendment to M.R. Crim. P. 44B modifies the Rule in five respects. First, a new condition for withdrawal of counsel assigned to represent an indigent defendant is added in the first sentence requiring that assigned replacement counsel “be designated by the Maine Commission on Indigent Legal Services to receive assignment for the type of case involved.” See

Advisory Note—July 2010 to M.R. Crim. P. 44.

Second, the word “appointed” in the second sentence is replaced by the word “assigned.” Id.

Third, in the same sentence assignment of new counsel must now be “in accordance with Rule 44, subdivision (a)(1).” Id.

Fourth, the phrase “be represented by counsel” has been added at the end of the second sentence for completeness.

Fifth, the final sentence of the Rule has been deleted as unnecessary.