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Chapter 10 out of 14 chapters in the annotated Professional Conduct Handbook

 

CHAPTER 10
WITHDRAWAL

Definition

0.1 In this Chapter, to "withdraw" includes to

(a) sever the solicitor-client relationship, or

(b) withdraw as counsel.

[added 03/2005]

Obligatory withdrawal

1. A lawyer is required to sever the solicitor-client relationship or withdraw as counsel if:

(a) discharged by the client,

(b) instructed by the client to do something inconsistent with the lawyer's professional responsibility, including the duty to the court,

(c) the client takes a position solely to harass or maliciously injure another,

(d) the lawyer's continued involvement will place the lawyer in a conflict of interest, or

(e) the lawyer is not competent to handle the matter.

[amended 03/2005]

Optional withdrawal

2. A lawyer is permitted, but is not required, to withdraw if there has been a serious loss of confidence between the lawyer and client.1

[amended 03/2005]

Annotations

Residual right to withdraw

3. In situations not covered by Rules 1 and 2, a lawyer may withdraw only if the withdrawal is not:

(a) unfair to the client, or

(b) done for an improper purpose.

[amended 03/2005]

4. Unfairness to the client depends on the circumstances of each case, but normally includes consideration of whether the withdrawal would:

(a) occur at a stage in the proceedings requiring the client to retain another lawyer to do the same work, or part of it, again,

(b) leave the client with insufficient time to retain another lawyer, and

(c) give a replacement lawyer insufficient time to prepare to represent the client.

[amended 03/2005]

5. Impropriety depends on the circumstances of each case, but includes withdrawal in order to:

(a) delay court proceedings, or

(b) assist the client in effecting an improper purpose.

[amended 03/2005]

Annotations

Withdrawal for non-payment of fee

6. If a lawyer and client agree that the lawyer will act only if the lawyer's fee is paid in advance, the lawyer must confirm that agreement in writing to the client, specifying a payment date.

[amended 03/2005]

7. A lawyer must not withdraw because the client has not paid the lawyer's fee when due unless there is sufficient time for the client to obtain the services of another lawyer and for that other lawyer to prepare adequately for a hearing or trial.

[amended 03/2005; 09/2010]

Annotations

Procedure for withdrawal

8. Upon withdrawal, the lawyer must immediately:

(a) notify the client in writing, stating:

(i) the fact that the lawyer has withdrawn,

(ii) the reasons, if any, for the withdrawal, and

(iii) in the case of litigation, that the client should expect that the hearing or trial will proceed on the date scheduled and that the client should retain new counsel promptly,

(b) notify in writing the court registry where the lawyer's name appears as counsel for the client that the lawyer has withdrawn and, where applicable, comply with any other requirements of the tribunal,2

(c) notify in writing all other parties, including the Crown where appropriate, of the severance or withdrawal,

(d) account to the client for:

(i) any money received for fees or disbursements, and

(ii) any valuable property held on behalf of the client, and

(e) take all reasonable steps to assist in the transfer of the client's file.

[footnote 2 deleted 04/2004; rule amended, footnote 1 renumbered footnote 2 03/2005;
amended 09/2010]

Annotations

Confidentiality

9. Subject to exceptions permitted by law,3 if the reason for withdrawal results from confidential communications between the lawyer and the client, the lawyer must not disclose the reason for the withdrawal unless the client consents.

[amended 03/2005; 09/2010]

Limited retainer

10. A lawyer who acts for a client only in a limited capacity must promptly disclose the limited retainer to the court and to any other interested person in the proceeding, if failure to disclose would mislead the court or that other person.

[amended 03/2005]

Annotations

*     *     *

FOOTNOTES:

1. Examples of circumstances to which this rule may apply include circumstances in which a client has:

(a) deceived the lawyer,

(b) refused to give adequate instructions to the lawyer, or

(c) refused to accept and act upon the lawyer’s advice on a significant point.

[added 03/2005]

2. In criminal matters, if withdrawal is a result of non-payment of the lawyer’s fees, the court may exercise its discretion to refuse to allow the withdrawal.  The court’s order refusing counsel’s withdrawal may be enforced by the court’s contempt power.  See R. v. Cunningham, 2010 SCC 10.

The relationship between a lawyer and client is contractual in nature, and the general rules respecting breach of contract and repudiation apply. Except in criminal matters involving non-payment of fees, if a lawyer decides to withdraw as counsel in a proceeding, the court has no jurisdiction to prevent the lawyer from doing so, and the decision to withdraw is not reviewable by the court, subject to its authority to cite a lawyer for contempt if there is evidence that the withdrawal was done for some improper purpose. Otherwise, the decision to withdraw is a matter of professional responsibility, and a lawyer who withdraws in contravention of this Chapter is subject to disciplinary action by the Benchers. See Re Leask and Cronin (1985), 66 BCLR 187 (SC). In civil proceedings the 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." See Luchka v. Zens (1989), 37 BCLR (2d) 127 (CA).

[deleted 04/2004; footnote 1 renumbered footnote 2 03/2005; amended 09/2010]

3. One such exception is that set out in R. v. Cunningham, 2010 SCC 10, which establishes that, in a criminal case, if the disclosure of information related to the payment of the lawyer’s fees is unrelated to the merits of the case and does not prejudice the accused, the lawyer may properly disclose such information to the court. See para. 31:

Disclosure of non-payment of fees in cases where it is unrelated to the merits and will not cause prejudice to the accused is not an exception to privilege, such as the innocence at stake or public safety exceptions (see generally R. v. McClure, 2001 SCC 14 and Smith v. Jones, [1999] 1 S.C.R. 455). Rather, non-payment of legal fees in this context does not attract the protection of solicitor-client privilege in the first place. However, nothing in these reasons, which address the application, or non-application, of solicitor-client privilege in disclosures to a court, should be taken as affecting counsel’s ethical duty of confidentiality with respect to payment or non-payment of fees in other contexts.

[added 09/2010]


*     *     *

ANNOTATIONS:

Rule 2 - Optional withdrawal

It is not proper for a lawyer to use the threat of withdrawal from a case to induce a client to accept a settlement.
EC July 1995, item 8

Rule 3 - Residual right to withdraw

It is not improper for a lawyer to withdraw from acting for a client at the request of another client if the withdrawal is in accordance with the Rules.
EC July 1996, item 10

Rules 6 and 7 - Withdrawal for non-payment of fees

When a Legal Services Society funding reduction prevents it from paying lawyers who have agreed to act as duty counsel in the future, lawyers may withdraw from that commitment by giving reasonable notice to the court of their intention to withdraw. Reasonable notice for duty counsel work may be as little as one day, with no distinction between accused who are in custody and those who are not.
EC March 2002, item 6

A lawyer acted for a client on an extradition matter for a period of time. The proceeding involved a fitness hearing, during which the government agreed to pay for legal fees. The client was not successful in securing legal aid for the balance of the extradition hearing, nor could he afford the lawyer's legal fees. The lawyer, a sole practitioner, could not take on the burden of a long hearing, in another city, without compensation. However difficult it may be, the lawyer had to allow sufficient time before withdrawing to enable the client to obtain the services of another lawyer and to enable the other lawyer to prepare adequately for trial.
EC March 25, 2003

A lawyer acted for a legal aid client in an immigration matter and was refused extra fees by the Legal Aid Society (and upheld by the Registrar) when the case was completed. He queried the propriety of accepting legal aid retainers he did not expect to be able to complete and the circumstances under which he may withdraw from legal aid cases. The Committee found that the lawyer had an obligation to deal with both the client and the Legal Services Society in good faith. He should not accept an immigration retainer that he does not expect to be able to complete for the fee offered, unless the Society and the client agree to such an agreement. Once the lawyer has accepted the case, Rules 1 and 2 of Chapter 10 govern withdrawal. If they do not apply, the lawyer can withdraw under Rule 3 if it is not unfair to the client and is not done for an improper purpose. This will depend on the particular circumstances of the case.
EC June 2006, item 3

Rule 8 - Procedure for withdrawal

A lawyer has an ethical duty, on the request of the client, to provide a client with documents in the possession of the lawyer that the client is entitled to have at law. Where a client requests a lawyer to provide documents in electronic form, a lawyer has an obligation to provide copies of the documents in the same electronic form in which the lawyer holds them at the time of the client's request.
EC December 2008, item 2

1. A lawyer is required to provide electronic documents to a former client on request even
when the lawyer has already provided them in the ordinary course of providing legal services to the client.
2. A lawyer is obliged to make reasonable efforts to provide electronic documents the client has requested, whether the client requests identifiable documents or makes a general request for documents. The lawyer is entitled to negotiate for the purposes of trying to settle a reasonable number of documents to be provided.
3. It is proper for a lawyer to charge a reasonable amount to the client for expenses associated with providing the documents, including the cost of materials required to do so. 4. Where a client is entitled to be provided documents in electronic form, the lawyer must provide them within a reasonable time.
EC November 2009, item 4  

A lawyer who withheld client files after he and the client settled a fee dispute in relation to those files was found guilty of professional misconduct.
DCD 92-5

Case Law

Counsel applied to withdraw and the client opposed the application.  The lawyer was in the awkward position of asserting that there had been a total breakdown of their relationship without being able to divulge the background to the dispute. The court has no power to order counsel to continue to act if counsel has decided he can no longer represent the client. Issues that lie properly within the domain of counsel and client circumscribe the court’s scope of inquiry. Counsel could not be ordered to continue to act. If the client felt that the lawyer was acting improperly, the proper recourse was for him to complain to the Law Society. Proper regulation of the integrity of lawyers will require, occasionally, access to confidential or privileged information. The lawyer is able to disclose such information to the Law Society during the investigation. This protects the independence of lawyers from state interference, while protecting the public interest in ensuring there is a method to regulate the conduct of lawyers.
Lau v. Rai 2007 BCSC 917

Rule 10 - Limited retainer

There is no necessary conflict between Rule 10 and the Criminal CaseFlow Management Rules, which seem to require the presence of counsel at certain procedural stages of criminal proceedings. It is proper for counsel to enter into an agreement with an accused person to act at trial only, and not to act for the accused in any procedural matters leading up to the trial. Of course, counsel would have an obligation to explain to the client any risks that a limited retainer of this nature might carry for the client.
EC November 30, 2000 item 9

It is not inconsistent with Rule 10 for a lawyer to provide anonymous drafting assistance to a client.
Recommendation 8 of Report of Unbundling of Legal Services Task Force p. 22; approved by Benchers April 2008

Failing to provide information to an unrepresented party about the limitations of the retainer does not amount to professional misconduct.
DCD 00-16

 

 

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Chapter 10 out of 14 chapters in the annotated Professional Conduct Handbook