Termination of the Client-Lawyer Relationship

• Author: David Layton; Michel Proulx
• Pages: 539-576

539

CH AP TER 11

TERMINATION OF

THE CLIENT-LAWYER

R EL AT IONSHIP

A. INTRODUCTION

Termination of a client-lawyer relationship can occur in a number of

ways. The most usual is where the purpose for which the relationship

was created has ended, for inst ance when charges are stayed or a trial

matter concluded. The focus of this chapter, however, is on termination

that occurs while the cl ient’s matter is ongoing. This kind of termina-

tion is most likely to occur becaus e the client discharges the lawyer or

because the law yer withdraws from the cas e. Of these two scenarios,

withdrawal throws up the more contentious issues, in particular con-

cerning the circumstances where a lawyer ca n properly withdraw from

a case and the duties associated with withdrawal.

Ideally, a number of different interests should be accommodated by

the rules of ethics t hat govern withdrawal. First, the f‌iduciary nature

of the client-lawyer relationship, with attendant duties of competence,

loyalty, and communication, requires that counsel act in t he client’s

best interests. As f ar as possible, the client should receive competent

and continuing representation, without undue delay or excessive cost

occasioned by termin ation. Second, lawyers are bound by demanding

professional standards in the conduct of the client’s defence. There are

ethical obligations not to breach the law, mislead the court, or other-

wise undermine the administration of justice in representing a client.

Sometimes, withdrawal will be the only method by which the se obliga-

tions can be met. Third, societ y at large and part icipants in the cr iminal

ETHICS AND CR IMINAL LAW540

justice process other tha n the accused and defence counsel have an

interest in ensuring reasonably eff‌icient and prompt proceedings that

promote a fair and just outcome.

In light of these diverse but interconnected interests, counsel is

not permitted to termin ate the client-lawyer relationship at will. With-

drawal must be for good cause with appropri ate notice to the client. And

where withdrawal is justif‌ied, the lawyer must extr icate herself from the

case with a minimum of prejudice to the client. Lawyers would there-

fore do well to think ahead by consider ing diff‌iculties that might lead to

or arise on withdr awal before accepting a case in the f‌irst place.1

Lawyers are not often exposed to complaint or censure for inappro-

priately withdraw ing from a case. It is possible, however, for a dissatis-

f‌ied former client to launch a disciplina ry complaint or sue the lawyer

civilly for negligence, breach of f‌iduciary duty, or breach of contract.

The issue of the former lawyer’s conduct may also be raised by the

abandoned client in seeking an adjournment or basing an appeal on a

denial of the right to the effective assistance of counsel. Final ly, a law-

yer who disobeys a court order to continue with a ca se may be cited for

contempt. The prospect of being subjected to such inquires or challen-

ges provides an incentive for lawyers to exercise the withdrawal option

with appropriate care and caution.

B. SPECIAL RULES OF PROFESSIONAL

CONDUCT FOR WITHDRAWAL IN

CRIMINAL CASES

Most Canadian law societies provide members with rules applicable

specif‌ically to withdrawal in crimi nal proceedings, which show sub-

stantial appreciation for the particular problems that can ar ise in the

criminal context.2 Typical are the Ontario rules and a ssociated com-

mentary, which state as follows:

3.7-4 A lawyer who has agreed to act in a cr iminal case m ay withdraw

because the cl ient has not paid the agreed fee or for other adequ ate

cause if the inte rval between a wit hdrawal and the date set for the

trial of the c ase is suff‌icient to enable t he client to obtain another

1 This point is clo sely related to the question of whethe r a lawyer is obliged to

accept, or refuse, a pr offered retainer: see Chapte r 2.

2 Alta r 2.07(4); Sask r 2.07(4)–(6); BC, Ont, NS, NL r 3.7-4 to 3.7-6. See also NB

ch 10, commentary 4(b).

Termination of the Cl ient-Lawyer Relationship 541

licensee to act in t he case and to allow such other lice nsee adequate

time for preparation, and t he lawyer

(a) notif‌ies the cl ient, preferably in writing, t hat the lawyer is w ith-

drawing be cause the fees have not been pa id or for other ad-

equate cause;

(b) accounts to the clie nt for any monies received on account of fees

and disburs ements;

(c) notif‌ies C rown counsel in wr iting that the law yer is no longer

acting;

(d) in a case when the lawyer’s na me appears on the records of the

court as acting for the acc used, notif‌ies the clerk or reg istrar of

the appropriate court in w riting that t he lawyer is no longer act-

ing; and

(e) complie s with the applicable rules of cour t.

Commentary

[1] A lawyer who has w ithdrawn bec ause of conf‌lict with the cl ient

should not indicate in the notice add ressed to the court or Crow n

counsel the caus e of the conf‌lict or make reference to any matter th at

would violate the privi lege that exists between l awyer and client. The

notice should merely state that t he lawyer is no longer acting and has

withdrawn.3

3.7-5 A lawyer who ha s agreed to act in a criminal c ase may not with-

draw because of non-pay ment of fees if the date set for tri al is not

far enough removed to enable the cl ient to obtain another license e

or to enable another licens ee to prepare adequately for tria l and an

adjournment of the tr ial date cannot be obta ined without adversely

affecting the c lient’s interests.4

3.7-6 In circumstances where a law yer is justif‌ied in w ithdrawing

from a crimin al case for reasons other th an non-payment of fees, and

there is not suff‌icient t ime between a notice to the client of the l aw-

yer’s intention to withdr aw and the date set for trial t o enable the

client to obtain anot her licensee and to enable such licen see to pre-

pare adequately for tri al:

3 Ont r 3.7-4. Very similar are Alt a r 2.07(4); Sask r 2.07(4)–(6); BC, NS, Nf‌ld r 3.7-4,

although subpar agraph (d) is not included in the Alta rule, a nd the commentary

is not included in the B C rule.

4 Ont r 3.7-5. Very simil ar are Sask r 2.07(5); BC, NS, NL r 3.7-5; NB ch 10, com-

men tar y 4(b).