Termination of the Client-Lawyer Relationship

• Author: Michel Proulx/David Layton
• Pages: 589-637

CHAPTER

TERMINATION

OF THE

CLIENT-LAWYER

RELATIONSHIP

A.

INTRODUCTION

Termination

of a

client-lawyer relationship

can

occur

in a

number

of

ways.

But the

most

familiar

forms

of

termination

are

discharge

by the

client

and

withdrawal

by the

lawyer. While both discharge

and

with-

drawal

are

dealt with

in

this chapter,

the

primary

focus

is

upon

the

cir-

cumstances where

a

lawyer

can

properly withdraw

from

a

case,

and the

duties associated with withdrawal. Ideally,

a

number

of

different

inter-

ests should

be

accommodated

by

rules

of

ethics that govern with-

drawal. 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

otherwise undermine

the

admin-

istration

of

justice

in

representing

a

client. Withdrawal

may be the

only

method

by

which these obligations

can be

met. Third, society

at

large

and

participants

in the

criminal 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. Rather,

589

590

ETHICS

AND

CANADIAN

CRIMINAL

LAW

withdrawal must

be for

good cause, with appropriate notice

to the

client.

In

instances where withdrawal

is

justified,

the

lawyer must

extricate himself

or

herself

from

the

case with

a

minimum

of

prejudice

to the

former

client.

It

could

be

argued, with convincing

reference

to the

rules

of

pro-

fessional

conduct

and

case law,

and

despite

the

occasional judicial

comment

to the

contrary, that lawyers

are in

fact

given considerable

latitude

to

withdraw

from

a

case. Certainly, counsel

who

does

not

wait

until

the

last minute

to

abandon

a

client prior

to

trial

can

choose

from

a

panoply

of

grounds

in

engineering withdrawal,

and

there

may be

lit-

tle

that

a

client

can do in

response. Moreover,

at the end of the day few

clients will

be

keen

to

keep

a

lawyer

who has no

interest

or

inclination

to

continue with

the

case. These musings, though somewhat cynical,

inarguably

contain

a

kernel

of

validity

and

highlight

the

need

for

lawyers

to

exercise

fair

judgment

and

exhibit respect

for the

client

and

the

proper administration

of

justice

in

considering

the

withdrawal

option. Lawyers would also

do

well

to

think ahead

by

considering dif-

ficulties

that might lead

to

withdrawal

before

accepting

a

case

in the

first

place.1

Lawyers

are not

often

exposed

to

complaint

or

censure

for

inap-

propriately withdrawing

from

a

case.

It is

possible, however,

for a

dis-

satisfied

former

client

to

launch

a

disciplinary

complaint

or sue the

lawyer

civilly

for

negligence, breach

of

fiduciary

duty

or

breach

of

con-

tract.

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

lawyer

who

disobeys

a

court order

to

continue with

a

case

may be

cited

for

contempt.

The

prospect

of

being subjected

to

such

inquires

or

chal-

lenges

provides

an

incentive

for

lawyers

to

exercise

the

withdrawal

option with appropriate care

and

caution.

B.

ONTARIO'S

SPECIAL

RULES

FOR

WITHDRAWAL

IN

CRIMINAL

CASES

The Law

Society

of

Upper Canada

is

alone among Canadian governing

bodies

in

providing members with several rules applicable specifically

1

This

point

is

closely

related

to the

question

of

whether

a

lawyer

is

obliged

to

accept,

or

refuse,

a

proffered

retainer:

see

chapter

2.

Termination

of the

Client-Lawyer

Relationship

591

to

withdrawal

in

criminal

proceedings.2

While most

other

governing

bodies

have

general

rules

that

apply

in a

similar manner

to

civil

and

criminal

cases,

Ontario's unique provisions show substantial

apprecia-

tion

for the

particular

problems

that

can

arise

where

counsel seeks

to

withdraw

in a

criminal

case.

The Law

Society's

rules

and the

associated

commentary

are

thus worth setting

out in

full:

2.09(4) Where

a

lawyer

has

agreed

to act in a

criminal case

and

where

the

interval between

a

withdrawal

and the

trial

of the

case

is

sufficient

to

enable

the

client

to

obtain another lawyer

and to

allow

such other lawyer adequate time

for

preparation,

the

lawyer

who has

agreed

to act may

withdraw

because

the

client

has not

paid

the

agreed

fee

or for

other adequate cause provided that

the

lawyer:

(a)

notifies

the

client, preferably

in

writing, that

the

lawyer

is

withdrawing because

the

fees

have

not

been paid

or for

other

adequate

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

acting.

Commentary:

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

cause

of the

conflict

or

make reference

to any

matter

that would violate

the

privilege that

exists

between lawyer

and

client.

The

notice should merely state that

the

lawyer

is no

longer act-

ing

and has

withdrawn.

2.09(5) Where

a

lawyer

has

agreed

to act in a

criminal case

and

where

the

date

set for

trial

is not far

enough removed

to

enable

the

client

to

obtain another lawyer

or to

enable another lawyer

to

prepare

adequately

for

trial

and an

adjournment

of the

trial date cannot

be

obtained

without adversely

affecting

the

client's interests,

the

lawyer

who

agreed

to act may not

withdraw because

of

non-payment

of

fees.

Some

other

governing

bodies

make

brief

reference

to

criminal

matters

in

dealing

with

withdrawal,

whether

expressly

or

otherwise:

see,

for

example,

B.C.

ch. 10,

r.

8(c)

and

note

1;

N.B.

Part

C, r. 6;

N.S.

ch. 11,

note

5; CBA

Code

ch.

XII,

note

4;

Man.

ch.

XII,

note

4; and

Sask.

ch.

XII,

note

4. But

none

has an

extensive

rul

or

rules

in the

manner

of the Law

Society

of

Upper

Canada.

2