809.85.Rule (Continuation, appearance, substitution or withdrawal of counsel).

Ch. 809: Rules of Appellate Procedure · Last amended 2021 · Last verified July 15, 2026

In one sentenceSection 809.85 sets the rules for how appointed counsel continues on appeal, how out-of-state counsel can appear, how a limited appearance ends, how counsel is substituted, and how an attorney withdraws -- including what a withdrawal motion must contain and the factors the court weighs in deciding it.

Full Text of Section 809.85

Text sizeJump to: (1) (2) (3) (4) (5) (6)

(1) APPOINTED COUNSEL TO CONTINUE. An attorney appointed by a lower court in a case or proceeding appealed to the court shall continue to act in the same capacity in the court until the court relieves the attorney or as allowed under sub. (3), (4), or (5) (b).

(2) NONADMITTED COUNSEL.

(a) Counsel not admitted to practice law in Wisconsin but admitted pro hac vice in the circuit court case shall provide the clerk with a copy of the circuit court’s order admitting counsel pro hac vice and then may appear before the court in association with counsel admitted to practice law and in good standing in Wisconsin. Wisconsin counsel shall sign every document filed in the court and shall be present in person in all proceedings unless excused by the court.

(b) Counsel not admitted to practice law in Wisconsin may move the court for pro hac vice admission and shall state by affidavit that counsel is admitted to practice law and is in good standing to practice law in another jurisdiction and that counsel has complied with SCR 10.03 (4). If the motion is granted, counsel may appear before the court in association with counsel admitted to practice law and in good standing in Wisconsin. Wisconsin counsel shall sign every document filed in the court and shall be present in person in all proceedings unless excused by the court.

(c) For good cause the court may revoke the privilege granted herein of any counsel admitted pro hac vice to appear in any proceeding.

(3) NOTICE OF LIMITED APPEARANCE. If an attorney’s scope of representation is limited, notices under s. 802.045 of limited appearance and of termination of limited appearance shall be filed with the court and served on the client and all parties. Upon the filing of the notice of termination of limited appearance, the clerk shall enter the withdrawal of counsel on the court docket without a court order.

(4) SUBSTITUTION OF COUNSEL.

(a) Applicability. This subsection does not apply to counsel appointed for a person under s. 809.107 or 809.30 (2) (e) or ch. 977 or by the circuit court for postconviction, postcommitment, or postdisposition proceedings under s. 809.107, 809.30, or 809.32.

(b) Substitution by mutual consent.

1. An attorney for a party to an appeal or other appellate court proceeding may withdraw upon the party’s consent by filing a notice of withdrawal signed by the party and withdrawing counsel and accompanied by a notice of substitution of counsel signed by substitute counsel. The notice of substitution of counsel must provide the substitute attorney’s name, mailing address, electronic mail address, if any, and telephone number. Upon the filing of a notice of withdrawal and notice of substitution of counsel, the clerk shall enter the substitution on the court docket without a court order.

2. Substitution of counsel without the signature of withdrawing counsel may be allowed for good cause shown and upon such terms as shall be just.

(c) Entry of appearance by members or employees of law firms, professional corporations, legal assistance clinics, and agencies. The entry of an appearance as attorney of record by an attorney who is a member or an employee of a law firm, professional corporation, legal assistance clinic, or agency representing a party to the appeal or other appellate court proceeding shall relieve other members or employees of the same law firm, professional corporation, legal assistance clinic, or agency from the necessity of filing a notice of withdrawal and substitution of counsel. Upon entry of such appearance, the clerk shall enter the substitution of counsel on the court docket without a court order unless the entry of appearance indicates that the attorneys will serve as co-counsel.

(5) WITHDRAWAL OF COUNSEL.

(b) Withdrawal by consent. Other than in an appeal under s. 809.107 or 809.30, an attorney for a party to an appeal or other appellate court proceeding may withdraw as counsel of record upon the party’s consent by filing a notice of withdrawal signed by the party indicating consent. The notice shall indicate the party’s last known address unless disclosure of the address would violate a standard of professional responsibility. Upon the filing of a notice of withdrawal indicating the party’s consent, the clerk shall enter the withdrawal on the court docket without a court order.

(c) Withdrawal by motion. An attorney desiring to withdraw as counsel of record for a party to an appeal or other appellate court proceeding who is unable to obtain the party’s consent under par. (b), or in an appeal under s. 809.107 or 809.30, must file a motion to withdraw. The motion shall be filed in the court in which the appeal or other appellate court proceeding is pending.

(d) Referral for appointment of counsel by the state public defender. If the appeal or other appellate court proceeding is one in which the client may be eligible for the appointment of counsel under s. 809.107 or 809.30 (2) (e) or ch. 977, and if the client requests representation by the state public defender, the attorney shall serve a copy of the motion to withdraw on the appellate division intake unit in the Madison appellate office of the state public defender and refer the client to the appellate division intake office for indigency determination and the possible appointment of counsel. When a client is referred to the state public defender, within 20 days after receipt of a motion to withdraw filed and served under par. (e), the state public defender shall notify the court in which the motion was filed of the status of the determination of the client’s indigency and whether the state public defender will appoint counsel.

(e) Content of motion to withdraw as counsel. A motion to withdraw as counsel must include all of the following items:

1. The client’s name and last known address, unless disclosure of the address would violate a standard of professional responsibility.

2. A statement that at least 14 days before the motion was filed the client was notified in person, by mail, by electronic mail, or by phone of all of the following information:

a. Counsel’s intent to withdraw.

b. Of the right to object to the motion within 11 days after service of the motion.

c. That unless the client retains or obtains new counsel, the client is personally responsible for keeping the court and the other parties informed where notices, briefs, or other papers may be served and complying with all court orders and time limitations established by the rules of appellate procedure or by court order, and that if the client fails or refuses to comply with court orders and established time limitations, the client may suffer possible dismissal, default or other penalty.

d. The date of any pending deadline or required filing in the appeal or other appellate proceeding.

e. If the client is not a natural person, that the client must be represented by counsel unless the appeal is taken from a small claims case.

3. When referral to the state public defender is required under par. (d), a statement that the referral was made and the date it was made.

4. A statement that the motion was served on the client, all parties to the appeal, and the appellate division intake unit in the Madison appellate office of the state public defender when referral to the state public defender is required under par. (d).

5. If counsel was unable to give the client the notice required under subd. 2., a statement that attempts to give notice have failed and an explanation of what good faith efforts counsel made to satisfy the notice requirement.

6. The reasons for withdrawal under SCR 20:1.16 and the facts relevant to the reasons or factors in the withdrawal determination under par. (f), unless an explanation of the reasons and facts would violate a standard of professional responsibility.

(f) Factors in withdrawal determination. The court may approve withdrawal under appropriate terms and conditions. The court may consider the following factors in deciding the attorney’s motion to withdraw:

1. Whether the client has been given reasonable notice and opportunity to obtain substitute counsel.

2. Complexity of the case, the length of time the attorney has served as counsel of record, and preparatory work completed.

3. The amount of fees paid or owed.

4. Whether the request is made to manipulate the appellate process.

5. Whether the attorney-client relationship is irrevocably broken.

6. Prejudice to any party.

7. Delay caused by the withdrawal of counsel of record.

8. Whether the office of the state public defender will appoint counsel.

9. Such other factors as the court may determine to be relevant.

(g) Time tolled. The filing of a motion to withdraw under this section automatically tolls the time for performing an act required by the rules of appellate procedure or court order from the date the motion was filed until the date motion is disposed of by order. The time for filing a petition for review under s. 808.10 is not tolled.

(h) Motion not necessary. Upon the filing of a petition for review by a self-represented person or new counsel, the clerk shall enter the withdrawal of counsel or substitution of counsel on the court docket without a court order.

(6) CLIENT’S FILE. The withdrawing attorney shall surrender to the client or successor counsel the papers and property to which the client is entitled within 14 days of counsel’s receipt of the client’s or successor counsel’s request, unless the court orders otherwise.

End

Official Notes

Judicial Council Committee’s Note, 1978: Rule 809.85 continues former Rule 251.88. [Re Order effective July 1, 1978]

Judicial Council Note, 1990: See ss. 48.235 (7), 767.045 (5) and 880.331 (7).

NOTE: Sup. Ct. Order No. 20-05 states that “the Judicial Council Note to Wis. Stat. § 809.85 is not adopted but will be published and may be consulted for guidance in interpreting and applying the rule.”

Judicial Council Note, 2021: Subsection (5)(a) is not intended to supersede Rule 809.30(4), which governs the withdrawal of appointed counsel. Subsection (6) is consistent with SCR 20:1.16(d) and only adds a time limit in which counsel must act. Subsection (6) allows the court to defer the surrender of papers and property to the client when the appointment of new counsel is anticipated.

Plain-English Summary

An attorney appointed by a lower court does not automatically step aside once a case reaches the appellate court. Section 809.85(1) requires that attorney to keep acting in the same capacity until the court relieves the attorney, subject to the section’s other subsections. Counsel not admitted to practice in Wisconsin can still appear -- either by having already been admitted pro hac vice in the circuit court case, or by moving for pro hac vice admission in the appellate court -- but always in association with Wisconsin counsel, who must sign every filed document and appear in person unless excused, and the court can revoke the pro hac vice privilege for good cause.

When representation is limited in scope, the notice of limited appearance and any notice terminating it must be filed and served, and the clerk enters the termination on the docket without needing a court order. Substituting counsel by mutual consent works the same way: a notice of withdrawal signed by the party and the withdrawing attorney, paired with a notice of substitution signed by the new attorney, lets the clerk enter the change without court involvement; substitution without the withdrawing attorney’s signature is possible for good cause. And when another attorney from the same firm, clinic, or agency enters an appearance, the other members of that office are relieved of the need to file separate substitution paperwork.

Withdrawal is more involved. This subsection and the substitution subsection do not apply to counsel appointed under Section 809.107, Section 809.30(2)(e), or Chapter 977 for postconviction, postcommitment, or postdisposition proceedings -- that kind of withdrawal goes through Section 809.30(4) instead. Outside that category, an attorney can withdraw by consent, with a signed notice from the client, or by motion when consent cannot be obtained. A motion to withdraw has to include the client’s name and last known address, proof that the client got at least 14 days’ notice of the intent to withdraw and the right to object within 11 days, warnings about the consequences of proceeding without counsel and any pending deadlines, and, where the client may be eligible for public defender appointment, a referral to the public defender’s appellate intake office. The court weighs factors like whether the client had a reasonable chance to find substitute counsel, the case’s complexity, fees paid or owed, whether the relationship has broken down, prejudice to other parties, delay, and the likelihood the public defender will appoint counsel. Filing the motion automatically pauses the deadlines for acts required by the appellate rules or a court order while the motion is pending, though it does not pause the deadline to file a petition for review.

Once withdrawal happens, Section 809.85(6) requires the attorney to hand over the client’s papers and property within 14 days of a request from the client or successor counsel, unless the court orders otherwise.

Frequently Asked Questions

Does my trial attorney automatically keep representing me once my case is on appeal?

Yes, if the attorney was appointed by the lower court, Section 809.85(1) requires that attorney to continue in the same capacity until the appellate court relieves the attorney, subject to the section’s substitution and withdrawal provisions.

Can an out-of-state attorney represent me in a Wisconsin appeal?

Yes, if admitted pro hac vice -- either already admitted below or by moving for admission in the appellate court -- but only in association with Wisconsin counsel, who must sign filings and appear in person unless excused.

What has to be in a motion to withdraw as counsel?

Section 809.85(5)(e) requires the client’s name and last known address, proof of at least 14 days’ advance notice of the withdrawal and the right to object, warnings about self-representation and pending deadlines, any required public-defender referral statement, and the reasons for withdrawal.

What does the court consider in deciding a motion to withdraw as counsel?

Section 809.85(5)(f) lists factors such as whether the client had reasonable notice and opportunity to get substitute counsel, the complexity of the case, fees paid or owed, whether the motion is meant to manipulate the process, whether the relationship is irrevocably broken, prejudice to any party, delay, and whether the public defender will appoint counsel.

Does filing a motion to withdraw pause my appeal deadlines?

Yes, Section 809.85(5)(g) automatically tolls the time for performing an act required by the appellate rules or a court order while the motion is pending, but it does not toll the deadline to file a petition for review.

Amendment History

History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 151 Wis. 2d xxv (1989); Sup. Ct. Order No. 20-05, 2021 WI 25, 396 Wis. 2d xv; 2021 a. 240 s. 30.

Source & verification. Section text and official notes are reproduced verbatim from the Wisconsin Statutes, published by the Wisconsin Legislature (Legislative Reference Bureau). Last verified July 15, 2026. · Official source

Also known as: wisconsin appellate attorney withdrawal809.85 substitution of counselmotion to withdraw as counsel wisconsin appealpro hac vice wisconsin court of appealspublic defender appointed counsel continue on appeal