Law Practice Essentials

You must notify the client in writing that you have withdrawn and provide the reasons for withdrawal (Rule 3.7-7(a) of the Code). You must protect the client’s interest to the best of your ability by giving the client sufficient time to retain new counsel and advise the client in writing of any upcoming court dates or deadlines, as well as recommend that the client promptly retain new counsel. 

In any litigation or tribunal proceedings, you should ensure you adhere to the applicable rules, procedures, and practices of the court or tribunal.

Rule 2.29(1) of the Alberta Rules of Court addresses the notice and filing requirements related to withdrawal of the lawyer of record. Rule 2.29(1) requires a lawyer withdrawing from the record in a litigation proceeding to serve notice on the client and each of the parties to the proceeding, and to file an affidavit of service of such notice. The withdrawal of the lawyer of record takes effect 10 days after the affidavit of service of the notice is filed (Rule 2.29(2)). If there are limitation issues, it is best practice to file the Affidavit of Service well in advance of the limitation date, and advise your client of the limitation date, to avoid prejudicing the client.

Alternatively, your former client may decide to file a notice of change of the solicitor of record, pursuant to Rule 2.28 of the Alberta Rules of Court.  If the client retains new counsel in a relatively short time frame, this may be a more appropriate and less prejudicial option. Sometimes other parties suspect that a lawyer has withdrawn due the client’s inability to pay or due to an ethical issue, and this may influence the other party’s file strategy. For example, if a party suspects the opposing party cannot pay their legal fees, they may be motivated to bring an application for that party to pay security for costs into court. If the file can be transferred between counsel in a more consensual way, the withdrawal of counsel may not attract the other party’s attention. However, if a notice of change of the solicitor of record is not filed in a reasonable time, it is prudent for you to file a notice of withdrawal to ensure that you are off the record.