While your client may withdraw from the relationship with you at any time, you may not. The overriding guiding principle is that a lawyer must ensure their client is treated fairly and is not prejudiced by the withdrawal of legal services. You must take care to ensure your client is not prejudiced by the process. Fairness to the client is paramount in these situations (see Code of Conduct Rules 3.7-6 and 3.7-7).
Before terminating the retainer, you must consider your contractual obligations, your ethical duties, and any statutory or procedural requirements that may apply in a civil litigation, criminal, or regulatory proceeding.
Contractual Obligations: A clear retainer agreement will benefit you if the lawyer-client relationship deteriorates. An effective retainer letter should explain the circumstances in which you can withdraw and how the file will be transferred. However, your retainer agreement cannot provide for a right to withdraw that is inconsistent with the Code of Conduct. To ensure that you are fairly paid, the retainer agreement should also address your entitlement to fees if the relationship ends before the file is resolved.
Ethical Obligations: The guiding principle is fairness to the client. A lawyer may only withdraw for good cause and on reasonable notice to the client (Rule 3.7-1 of the Code). If there are statutory or rules requirements concerning the required notice for the matter, those will govern. Otherwise, sufficient notice requires for the client to have sufficient time to retain and instruct a new lawyer.
Withdrawal should be done expeditiously and not waste court time. You must do all that reasonably can be done to facilitate orderly transfer of the file to the client’s new lawyer (Rules 3.7-1 and 3.7-6 of the Code).
The Code of Conduct sets out situations in which a lawyer must withdraw (Rule 3.7). These are situations in which it would be unethical to continue to represent the client, such as when the client insists on instructing the lawyer to act contrary to ethics or if the lawyer is not competent to handle the file. The Code of Conduct also explains when a lawyer may withdraw legal services (Rules 3.7-2 and 3.7-3), such as when there has been a serious loss of confidence between the lawyer and the client, or when after reasonable notice the client fails to pay the account. These circumstances are discussed in more detail later in this Module.
Remember that you still have an obligation to preserve client confidentiality and, absent client consent, you must not disclose the reasons for your withdrawal in circumstances where the reason for withdrawal arose from confidential client communications.
Statutory/Procedural Obligations: In litigation matters, you are required to provide notice of your withdrawal as counsel of record in accordance with the applicable rules and practices of the court or tribunal. Depending on the nature of the proceeding, you may be required to make an application before you may withdraw services or cease to act as lawyer of record.
An application to withdraw is typically required in criminal proceedings, and the Court may deny defence counsel’s application to cease to act if permitting the lawyer to withdraw would seriously harm the administration of justice. On the other hand, in R. v. Cunningham 2010 SCC 10, the Supreme Court of Canada stated that a court should not order counsel to continue to act in the face of an ethical issue.