13.5
When You May Withdraw Services

You may withdraw your services if there has been a serious loss of confidence between you and your client (Code of Conduct Rule 3.7-2). This arises when the client deceives you, or refuses to accept and act upon your advice on a significant point. The right to withdraw services does not arise simply because your client is asking for clarification of your advice or disagrees with you. For example, a client may wish to proceed to trial after you explain the risks and options, even if you recommend a settlement. Their decision does not necessarily permit you to withdraw. 

You may also withdraw if the client is persistently unreasonable or uncooperative in a material respect or if you have trouble getting adequate instructions. It is improper to use a threat of withdrawing services to force your client to make a hasty decision on a difficult question (see Commentary under Rule 3.7-2 of the Code). 

In addition, you may withdraw your services if the client fails to provide a retainer or payment on account of fees or disbursements, but only if you have given the client reasonable notice and the client will not be seriously prejudiced by your withdrawal (Rule 3.7-3 of the Code). In cases of unpaid fees, you may have a right to a solicitor’s lien. This is discussed later in this module.

It is likely improper to withdraw if the withdrawal of legal services would:

  • leave the client insufficient time to retain a new lawyer; or
  • leave the new lawyer insufficient time to prepare and represent the client.

If the withdrawal occurs at a stage of the proceeding where a significant amount of work has been done, there is potential prejudice to the client. For that reason, the Code of Conduct (Rule 3.7-7) states that you have an obligation to share completed work product and research with the successor lawyer.

If you are acting in a criminal proceeding, read  Rule 3.7-4 of the Code. You may withdraw if the client has not paid your fee or for other adequate cause if there is sufficient time for the client to obtain a new lawyer and to allow the new lawyer sufficient time to prepare. If you are on the record in a criminal matter, you will need to obtain leave of the court to withdraw as lawyer of record. 

You may want to read relevant cases on withdrawal from criminal proceedings, including Re A.L. (2003) ABQB 905 (CanLII) and R. v. Creasser (1996) ABCA 303 (CanLII). Remember that the court could order you to continue to act even if the client cannot pay your fees, although a court should not order a lawyer to continue in the face of an ethical issue (see R. v. Cunningham 2010 SCC 10).

<13.4 When You Must Withdraw Services

13.6 Obligations on Withdrawal >

Last modified: Friday, 18 December 2020, 11:31 AM