13.8
Applications to Withdraw

Rule 2.31 of the Alberta Rules of Court provides that if a trial date has been set, the lawyer requires the court's permission to serve a notice of withdrawal as lawyer of record. Without such permission, service of the notice of withdrawal has no effect. 

If there are limitations issues, make sure you withdraw and file the Affidavit of Service well in advance of the deadline to avoid prejudicing your client. Withdrawal should not result in a waste of court or tribunal time or resources.

If you have lost touch with the client, you must make reasonable efforts to locate the client and comply with any applicable requirements, including those set out in the Rules of Court. You may need to attend court to obtain an order for substitutional service if your client has moved or disappeared.

Remember that you still have an obligation to preserve client confidentiality and, absent client consent, you may not disclose the reasons for your withdrawal in circumstances where the reason for withdrawal arose from confidential client communications.  

This confidentiality obligation may appear to conflict with your duty to treat tribunals with candour (Code of Conduct Rule 5.1-1). Confidentiality may become an issue if on an application to withdraw as lawyer of record, the Court asks for the reasons for your withdrawal. To protect privilege, you may state that differences have arisen or that there is an inability to obtain proper instructions (as the case may be).  As the Supreme Court of Canada has noted, when counsel informs the court they are withdrawing for ethical reasons, the court must accept this explanation “at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege” (see R. v. Cunningham 2010 SCC 10 at  para. 48). 

If you are considering withdrawing in a criminal matter and anticipate the Court may have concerns, you are well-advised to research the case law to confirm how the case authorities are being applied in your jurisdiction. There are a few cases outlined in Chapter 5 of this Module.

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13.9 File Transfer and Retention Obligations >

Last modified: Friday, 18 December 2020, 11:32 AM