Termination of the Client-Lawyer Relationship

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

539

CHAPTER 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 instance when charges are stayed or a trial

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

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

tion is most likely to occur because the client discharges the lawyer or

because the lawyer withdraws from the case. 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 that govern withdrawal. First, the f‌iduciary nature

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

loyalty, and communication, requires that counsel act in the client’s

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

and continuing representation, without undue delay or excessive cost

occasioned by termination. 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 these obliga-

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

ETHICS AND CRIMINAL LAW540

justice process other than 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 terminate 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 withdrawal before accepting a case in the f‌irst place.1

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

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

f‌ied former client to launch a disciplinary 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. Finally, 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 criminal proceedings, which show sub-

stantial appreciation for the particular problems that can arise in the

criminal context.2 Typical are the Ontario rules and associated 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 client has not paid the agreed fee or for other adequate

cause if the interval between a withdrawal and the date set for the

trial of the case is suff‌icient to enable the 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 Relationship541

licensee to act in the case and to allow such other licensee adequate

time for preparation, and t he lawyer

(a) notif‌ies the client, preferably in writing, that the lawyer is with-

drawing because the fees have not been paid or for other ad-

equate cause;

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

and disbursements;

(c) notif‌ies Crown counsel in writing that the lawyer is no longer

acting;

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

court as acting for the accused, notif‌ies the clerk or registrar of

the appropriate court in writing that the lawyer is no longer act-

ing; and

(e) complies with the applicable rules of cour t.

Commentary

[1] A lawyer who has withdrawn because of conf‌lict with the client

should not indicate in the notice addressed to the court or Crown

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-payment of fees if the date set for trial is not

far enough removed to enable the client to obtain another licensee

or to enable another licensee to prepare adequately for trial and an

adjournment of the trial date cannot be obtained without adversely

affecting the client’s interests.4

3.7-6 In circumstances where a lawyer is justif‌ied in withdrawing

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

there is not suff‌icient time between a notice to the client of the law-

yer’s intention to withdraw and the date set for trial to enable the

client to obtain another licensee and to enable such licensee 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).