Rule 4.109 - ATTORNEY SUBSTITUTIONS AND WITHDRAWALS(1) In specially assigned cases the permission of the assigned judge is required for substitution or withdrawal of defense counsel. In appropriate cases, the assigned judge may refer any hearing regarding substitution of counsel to the Chief Criminal Judge or the Presiding Judge.(2) In all cases in which a substitution or withdrawal will result in the need for a court-appointed attorney, the substitution or withdrawal may only be done with court approval and by following the procedures in this section. Attorney changes within the same firm are exempt from this rule; however the attorney must file a Notice of Substitution.(a) In misdemeanor cases, substitution hearings must be scheduled on the CPC docket on the day designated for substitution regardless of the type of conflict at issue. Attorneys should consult the CPC rules regarding any applicable provisions.(b) In felony cases, if a request for substitution is based on Oregon Rules of Professional Conduct (ORPC) 1.7, 1.9, 1.10 or other "actual" conflict, the attorney may schedule a hearing with the Chief Criminal Judge, or, if the attorney can make the representations set out in Section (4) of this rule, may present the motion to Presiding Court ex parte after notifying all parties. If the attorney requesting substitution is a court-appointed attorney, the attorney may use the procedure to e-file the motion pursuant to Section (4). Appearances by simultaneous electronic transmission are allowed for hearings under (2)(b).(c) In felony cases, if a request for substitution or withdrawal is based on ORPC 1.16, or on the defendant's motion for new attorney, the attorney must schedule a hearing with the Chief Criminal Judge. Defendants must appear in person at these hearings.(3) For cases in which an attorney not appointed by the court is seeking substitution, termination, or withdrawal, and in which a new court-appointed attorney is not being requested, the following procedures apply: (a) When a case is more than 30 days away from trial or from the expiration of the time period under ORS 136.295: (i) A substitution when another attorney is accepting representation may be achieved by filing a Notice of Substitution that complies with UTCR 3.140. When an attorney is employed or appointed to appear in an already pending case, the attorney must immediately notify the court and opposing counsel pursuant to UTCR 3.140(3).(ii) A termination or withdrawal when it is unknown whether another attorney is accepting representation may be achieved by filing a Notice of Termination or Notice of Withdrawal that complies with UTCR 3.140. The attorney must also schedule a hearing before the Chief Criminal Judge in felonies or in CPC for misdemeanors in order for the court to address the attorney status for the case.(b) When the case is within 30 days of trial or the expiration of the time period under ORS 136.290: (i) A substitution when another attorney is accepting representation requires a Motion for Substitution that complies with UTCR 3.140. If either party is requesting the next court date be changed, the attorney must also schedule a hearing before the Chief Criminal Judge in felonies or in CPC for misdemeanors. A hearing is not required if there is no date change or if the defendant submits the Motion at Presiding or CPC ex parte along with a stipulated setover date that is accepted by the court. Attorney changes within the same firm are exempt from this rule if no party is requesting a continuance; however, the attorney should file a Notice of Substitution.(ii) A Notice of Termination or Motion to Allow Withdrawal when it is unknown whether another attorney is accepting representation requires filing a notice or motion as applicable and scheduling a hearing before the Chief Criminal Judge in felonies or in CPC for misdemeanors.(c) Unless otherwise ordered by the court, appearance by simultaneous electronic transmission is permitted for hearings set under Rule (3).(4) In felony cases, or in misdemeanors if permitted by CPC rules, attorneys filing motions subject to Section (2)(b) of this rule may e-file a Motion for Substitution and accompanying declaration or affidavit and provide a courtesy copy by email of the motion and declaration to all appropriate parties, the Chief Criminal Judge and the Chief Criminal Judge's JA. No hearing is needed if the declaration addresses all of the following, unless otherwise required by the Chief Criminal Judge:(a) The general reason for the actual conflict;(b) Affirmation that the attorney has consulted with the client and the client understands the reason for the substitution;(c) Affirmation that the client waives the right to be present for a hearing;(d) Affirmation that the client grants permission to turn over case materials to new counsel. If the client grants permission, counsel should send discovery as soon as practicable to the court's indigent defense coordinator.(e) Whether the client is in custody, and if so, what the status is for ORS 135.240(4); 135.763; 135.775; 136.290 or for probation violations, the status for ORS 137.545(6).(f) Affirmation that the client understands that depending on the status in (4)(e), the court could find good cause to extend any of those deadlines based on the substitution of counsel.(g) If the case is within 30 days of trial, that the State is not seeking a hearing to address the next court date.(h) If the court is experiencing shortfalls of available court appointed attorneys, affirmation that the client understands that there may be a lengthy delay of two months or more before the court is able to identify a qualified attorney to accept representation.(i) Whether there are any pending concerns about the defendant's fitness to proceed.(j) Information of the above matters must be provided for each of the defendant's cases in which counsel seeks substitution.(5) Administrative substitutions are permitted by submitting a proposal to the court's indigent defense coordinator with an explanation why an administrative substitution is appropriate, i.e., a case was mistakenly assigned to an attorney who was previously substituted off the case, or a case went to an incorrect public defender agency, or other clerical error. The court retains discretion to decline administrative substitutions and require a hearing be set.Multnomah Supp. L. R. 4.109
Amended effective 2/1/2024.