July 13, 2017

Maintaining privilege and confidentiality when ending the solicitor-client relationship

July 13, 2017

The Law Society has seen a number of complaints in recent years where lawyers have breached client confidentiality when trying to withdraw as counsel of record in a matter. Examples include lawyers revealing their client’s personal or financial information when explaining their reasons for withdrawing to the court, or disclosing in affidavits legal advice provided to their client.

Privilege, confidentiality and trust are essential to the solicitor-client relationship. A recent decision by the Supreme Court of Canada described solicitor-client privilege as being “a civil right of supreme importance and a principle of fundamental justice” [Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, para. 5].

A lawyer’s conduct in breaching either privilege or the duty of confidentiality owed to a client or former client is serious and may amount to professional misconduct. Past sanctions have included conduct reviews, with the more serious breaches resulting in the issuance of citations with disciplinary outcomes such as significant fines and suspension from practice. Where a citation is proved, the lawyer may also be liable to pay costs of the hearing.

If you are thinking about ending your retainer with a client, please bear the following in mind:

1. The BC Code provides direction on withdrawing

Ending the solicitor-client relationship is not as straightforward for lawyers as it is for clients. Clients may terminate the relationship at any time for any reason. Lawyers, however, must be more circumspect, thinking carefully about why they wish to withdraw their services and, if permitted, the manner in which this will be accomplished.

Section 3.7 of the Code of Professional Conduct for British Columbia deals with the withdrawal process in detail, including numerous reminders to lawyers of their ongoing obligations to clients.

Section 3.7 provides that you must not withdraw except for good cause and on reasonable notice to your client. You are permitted to withdraw if there has been a serious loss of confidence. You may also withdraw for non-payment of fees, but only after providing the client with reasonable notice. In other circumstances, you may be required to withdraw. Those circumstances include: termination by client; client persisting in instructing you to act contrary to your professional obligations; and where you are not competent to continue handling the matter. Rule 3.7-4 provides specific guidance for withdrawing in criminal cases.

Familiarizing yourself with section 3.7 will assist you when deciding whether you may withdraw and, if so, that you are taking the proper steps such as notifying your client in writing of your withdrawal and the reasons for it.

2. Your client may not agree to terminate the relationship

Be aware that your client may refuse to accept your decision to withdraw and you may need to apply to the court to get off the record. It is important to remember that even where the relationship has irrevocably broken down, you must continue to protect your client’s interests and that your duty of confidentiality to your client continues even after the solicitor-client relationship has ended.

3. What does the court actually need to know?

In civil proceedings, a lawyer is not required to obtain the court’s approval before withdrawing as counsel but must comply with the Rules of Court before being relieved of the responsibilities that attach as “solicitor acting for the party” [Luchka v. Zens (1989), 37 BCLR (2d) 127 (CA) and Rule 22-6 of the Supreme Court Civil Rules].

R. v. Cunningham, 2010 SCC 10, [2010] 1 SCR 331, is the leading authority on what a lawyer needs to disclose to the court when getting off the record in a criminal case:

[47]      If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel’s reasons for seeking to withdraw.

[48]      Assuming that timing is an issue, the court is entitled to enquire further. Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reasons (e.g. workload of counsel) if solicitor-client privilege is not engaged … in either the case of ethical reasons or non-payment of fees, the court must accept counsel’s answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege.

Remember the simplest response is the best and less likely to place you offside the Code.

4. You must preserve your client’s privilege and confidentiality

Rule 3.3-1, commentary [2] distinguishes between a lawyer’s obligation to maintain (a) confidentiality and (b) solicitor-client privilege.

Rules 3.3-1 and 3.3-2 require lawyers to hold in strict confidence all information concerning the business and affairs of a client acquired in the course of their professional relationship. The Code is explicit about the duration of this obligation: “The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.” [rule 3.3-1, commentary [3]]

When preparing an affidavit to withdraw, be cautious not to disclose any confidential information, unless the client has given express consent for you to do so.

It is also imperative to preserve any client information or documents in your possession that either may be or are protected by solicitor-client privilege. Rule 3.3-2.1 advises on what to do if you are asked to surrender such a document or information.

As with client confidentiality, your duty to maintain solicitor-client privilege survives the termination of the professional relationship.

In summary, remember that regardless of the circumstances leading to the withdrawal, your actions must never adversely prejudice your client.