Sep 01, 2011

Withdrawal from Representation

By Oren Weinberg and Herschel Fogelman

I remember my first day at Law School. One of my professors made the point of saying that we – the first year student body- had already succeeded in the hardest part of becoming a lawyer, namely we got into law school. Now all that was left to do, was persevere through 3 years of courses, articles and the bar exams and we would be home free.

Many of us take that approach to client relationships. We assume that the hardest part of the relationship is the initial meeting and securing the retainer. More often than not that assumption is correct. However, there are occasions where the hardest part of the file is not getting retained, but withdrawing your services. This paper will examine the nuances and mechanics of terminating the relationship with your client.

Reasons for Withdrawal

It is trite to say that a solicitor is permitted to withdraw from a file if there has been a breakdown of the solicitor and client relationship, but essentially that is the test. Rule 2.09 (1) of the Rules of Professional Conduct (RPC) states a lawyer shall not withdraw from representation of a client except for good cause and upon notice to the client appropriate in the circumstances. What constitutes a breakdown of the relationship is varied but comes down to a few easily identifiable circumstances. Not surprisingly the Rules of Professional conduct provide very little assistance. The commentary under rule 2.09 (1) reads as follows:

Although the client has the right to terminate the lawyer-client relationship at will, the lawyer does not enjoy the same freedom of action. Having undertaken the representation of a client, the lawyer should complete the task as ably as possible unless there is justifiable cause for terminating the relationship. No hard and fast rules can be laid down about what will constitute reasonable notice before withdrawal. Where the matter is covered by statutory provisions or rules of court, these will govern. In other situations, the governing principle is that the lawyer should protect the client's interests to the best of the lawyer's ability and should not desert the client at a critical stage of a matter or at a time when withdrawal would put the client in a position of disadvantage or peril.

Rule 2.09(2) permits the removal of a lawyer where there has been a serious loss of confidence between the lawyer and the client. Rule 2.09(3) permits the removal of a lawyer where after reasonable notice, the client fails to provide funds on account of disbursements or fees, unless there would be serious prejudice to the client resulting from the removal.

The best way to approach termination given the inherent ambiguity in the RPC is to consider those circumstances where a court would permit counsel to withdraw. More often than not, courts will permit counsel to withdraw under the following general circumstances:

A. Persistent non- payment of accounts. Courts are generally reluctant to force counsel to work for free. On the other hand, there are many circumstances where courts will not allow counsel to remove themselves from the record even if accounts are unpaid, if to do so would prejudice the client. The point of this being that if you are going to rely on this ground, do not wait until the eve of trial to bring the motion;

See Johnston v. Toronto (City), 1963 CarswellOnt 295 – Generally speaking a solicitor should proceed with an action until completion. However, where the client refused to make reasonable payments, it was reasonable for the solicitor to withdraw.

See Kovinich v. Kovinich, 2008 CarswellOnt 798 – Shortly before trial, lawyer sought to be removed from record. Client fell behind payments despite retainer agreement that client make monthly payments. Lawyer repeatedly reminded client to bring retainer into good standing. Court removed solicitor for non-payment. Court found that lawyer clearly communicated that retainer needed to be brought up to date and had done some work in the absence of a proper retainer.

B. Failure to get instructions. If the lawyer can show that he or she is unable to get instructions, regardless of the cause, the courts will allow you to withdraw. In this circumstance timing is less critical than that of unpaid accounts. Courts will not compel counsel to conduct a trial without instructions;

C. Failure to agree on tactics or instructions. This is similar but different than B above. It is one thing to say that you are unable to get instructions, it is another to say that the client and you are unable to agree on an approach. In this circumstance, you will have to establish that there has been a breakdown of confidence or a specific inability to communicate that is frustrating the relationship;

See Kovinich v. Kovinich, 2008 CarswellOnt 798 – although the removal of the lawyer was also based on non-payment of fees, the court also removed the lawyer because of a breakdown of the solicitor-client relationship. Here there was a loss of confidence between the lawyer and client. The client undermined her relationship with the lawyer by 1) complaining about lack of progress in the case even though the court found that she enjoyed very good service, 2) she complained to the firm’s managing partner causing an internal inquiry by the managing partner of the lawyer, and 3) the client threatened to complain to the Law Society.

This case is also a good example of the importance for having a clearly communicated retainer agreement/policy.

See also Nicolardi v. Daley 2003 CarswellOnt 1780 – client’s own evidence demonstrated that he lacked confidence in solicitor.

D. For health or personal reasons. Clearly in this circumstance courts are sympathetic to counsel, however it is not sufficient to merely say that you cant act for health reasons, counsel should be making efforts to find alternatives and to generate reasonable referrals;

E. If a conflict develops. There are times when it is not readily apparent that there is a conflict of interest or the conflict arises after the retainer. This can occur for a number of reasons, many of which cannot be predicted.

As the commentary states the key is to deal with any problems as they arise, and in a timely way so as to avoid any prejudice to your client. In short as soon as you see the problem get out. More often than not the prejudice to the client is defined by time – in other words, how long it will take the client to find alternative counsel and how long that counsel will take to get up to speed. That prejudice is often resolved in favor of the lawyer, given that most cases are not that time sensitive and adjournments are readily granted. The time issue is directly related to the proximity of trial. There are circumstances where a court will allow a lawyer to withdraw even at the eve of trial, but the lawyer runs the risk of having costs thrown away awarded against him or her if the other party strongly objects to the timing of the withdrawal or if the timing prejudices the other party.

Mechanics of the Withdrawal Motion

Rule 4 (13) – (15) govern the mechanics of the motion. I will not repeat the rule in this paper. The most important things to remember are that the motion itself must be served on all interested parties, but the evidence used in support of the motion shall not be served on any other party. The evidence, namely an affidavit of some kind, shall not form part of the continuing record and shall not be kept in court after the motion is to be heard.

The biggest mistake one can make in this circumstance is to serve your affidavit on the other party. That affidavit will no doubt contain serious negative allegations against your client and will seriously prejudice him or her if it finds its way into your opponent’s hands. All your opponent needs to know is that you are moving to get off the record and the date of that motion. If he or she wishes to object they can do so.

The affidavit should be specific. It should give the court enough information to grant the order, but again you must be careful that it not prejudice your client. You must keep in mind that in a case management system, especially in smaller jurisdictions where there are fewer judges, even if the affidavit is purged from the record, the fact that you told the judge that your client was pathological liar who insisted on falsifying financial statements, will end up prejudicing your client down the road. I suggest it is sufficient to say that you are unable to get paid, or unable to get instructions and in those circumstances you are unable to act. You should say, if true, that your removal will not prejudice your client or the timely resolution of the case.

Alternative methods of withdrawing services

There are circumstances where in the writers opinion, it is appropriate to enter into retainer agreements that specifically anticipate/permit withdrawal from services at a fixed moment in time or upon the happening of specific events. One such circumstance is where counsel is retained on a limited capacity, say to render an opinion or to attend at a single event. The retainer agreement should clearly articulate that at the conclusion of that event, the retainer is at an end, without the need for any further steps to be taken.

These circumstances are made slightly more difficult if counsel has to go on the record and in those cases it is appropriate to have the client execute the appropriate notice of change that can be filed upon the completion of a specific event. The retainer agreement should be specific that the Notice will be filed on the completion of the said event.

I also think it appropriate to draft that kind of agreement if you are going to act for a client with limited funds. It begs the question why you act in the first place, but if so agree, there are no specific or implied prohibitions in getting the client to execute the Notice at the time of the original retainer, provided that circumstances when the Notice will be filed are understood and articulated.

Summary

My articling mentor once told me that the lawyer’s job was best described as follows: the lawyer spends the morning protecting his client from his or her adversary and the afternoon protecting him or herself from the client. At the time I thought he was either joking or that his cynicism had overwhelmed him. I know appreciate the truth in that statement. One of the most important ways to protect yourself from your client is to know when and how to end the relationship. We trust that this paper will assist you in the future.

Photography by r. nial bradshaw

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