Difficult Clients & Terminating a Retainer Agreement: the Law.
In rare but difficult circumstances, a lawyer may be ethically required to terminate a retainer agreement with a client. This may arise when issues arise where the lawyer reasonably believes that a client’s comments, wishes, demands, instructions, or otherwise conflict with the lawyer’s professional responsibilities and the appropriate Law Society’s Code of Ethics. In this Province, the Law Society of BC and its Code of Professional Conduct governs the ethical obligations of a lawyer.
At times, unfortunately, a lawyer is ethically responsible to withdraw as a client’s lawyer.
The legislation overseeing a lawyer’s withdrawal as the lawyer on record for a client is governed by the BC Supreme Court Civil Rules (“SCCR”) and case law. Rule 22-6 of the SCCR states as follows:
Order on application of lawyer
(3) If a lawyer who has acted for a party to a proceeding has ceased to act and the party has not given a notice of change in accordance with subrule (1), the court, on the application of the lawyer, may declare that the lawyer has ceased to be the lawyer acting for the party and, if applicable,
(a)may declare that the lawyer's office is not the address for service of the party and give directions as to a new address for service, and
(b)may declare that the lawyer's fax number or e-mail address may no longer be used for service and give directions for a new fax number or e-mail address for service.
Notice of withdrawal
(4) As an alternative to proceeding under subrule (3), a lawyer who has ceased to act for a party who has not given a notice of change under subrule (1) may serve a notice of intention to withdraw in Form 112 on that party and on the other parties of record.
…Procedure if no objection filed
(6) A lawyer who serves a notice of intention to withdraw under subrule (4) on all parties of record to a proceeding may file a notice of withdrawal of lawyer in Form 114 if no objection, notice of change of lawyer or notice of intention to act in person is filed within 7 days after service of the notice of intention to withdraw.
The leading case on the test for a lawyers withdrawal as the lawyer on record is the Supreme Court of Canada (“SCC”) case of R. v. Cunningham, [2010] 1 SCR 331; delivering the Reason for the SCC, Rothstein J. states:
[46] The court’s exercise of discretion to decide counsel’s application for withdrawal should be guided by the following principles.
[47] If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act.
[48] Assuming that timing is an issue, the court is entitled to enquire further. Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged. Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused. Counsel may cite “ethical reasons” as the reason for withdrawal if, for example, the accused is requesting that counsel act in violation of his or her professional obligations (see, e.g., Law Society of Upper Canada, r. 2.09(7)(b), (d); Law Society of Alberta, c. 14, r. 2; Law Society of British Columbia, c. 10, r. 1), or if the accused refuses to accept counsel’s advice on an important trial issue (see, e.g., Law Society of Upper Canada, r. 2.09(2); Law Society of Alberta, c. 14, r. 1; Law Society of British Columbia, c. 10, r. 2). If the real reason for withdrawal is non-payment of legal fees, then counsel cannot represent to the court that he or she seeks to withdraw for “ethical reasons”. However, in either the case of ethical reasons or non-payment of fees, the court must accept counsel’s answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege.
[49] If withdrawal is sought for an ethical reason, then the court must grant withdrawal (see C. (D.D.), at p. 328, and Deschamps, at para. 23). Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations. It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities.
In Sandhu v. Household Realty Corp., 2013 BCSC 192, the BC Supreme Court confirmed that the res judicata set out in Cunningham - which was a criminal law case - equally applied to the withdrawal of counsel in civil proceedings.
It should be noted that the BC Court of Appeal (“BCCA”) - this Province’s highest court - also has commented on the withdrawal applications of lawyer. For example, in R. v. Huber, 2004 BCCA 43, the BCCA summarized the law as follows:
[121] The law in this province governing withdrawal of counsel from a trial is set out in Leask v. Cronin (1985), 1985 CanLII 586 (BC SC), 66 B.C.L.R. 187, [1985] 3 W.W.R. 152, 18 C.C.C. (3d) 315 (S.C.) [cited to B.C.L.R.], approved Luchka v. Zens (1989), 1989 CanLII 2749 (BC CA), 37 B.C.L.R. (2d) 127, 36 C.P.C. (2d) 271 (C.A.) [cited to B.C.L.R.]. The lawyer-client relationship is a contractual one, either party is entitled to terminate the contract upon repudiation by the other, and the propriety of a lawyer’s termination of the contract is a disciplinary matter for the benchers of the Law Society: Luchka v. Zens, supra, at 129, quoting with approval from Leask v. Cronin, supra, at 197.
[122] Further, once counsel announces that he or she will no longer represent the accused, the court has no power to order counsel to continue. As McKay J. said, in Leask v. Cronin, supra, at 197:
The issue is whether a trial judge has any right in law to order counsel to continue in the defence of an accused after counsel advises that he has decided that he will no longer represent the accused. In my view, the law is clear that he cannot make such an order. I had never heard it suggested otherwise until I read the remarks of Judge Cronin. A judge can, of course, urge counsel to reconsider and to try and reconcile any differences with his client – but if counsel stands firm then he cannot be prevented from withdrawing. It follows that counsel cannot properly be cited for contempt for refusing to comply with an unlawful order
Madam Justice Rowels in concurring reasons stated at para. 76 as follows:
Whatever the reasons may be for counsel seeking to withdraw, the court’s scope of inquiry is circumscribed by issues that lie properly within the domain of counsel and client: Leask v. Cronin, supra; Luchka v. Zens (1989), 1989 CanLII 2749 (BC CA), 37 B.C.L.R. (2d) 127 (C.A.). Inquiries must end at the point at which “unhappy differences” or privilege are cited: R. v. C.(D.D.) (1996), 1996 ABCA 303 (CanLII), 110 C.C.C. (3d) 323 (Alta. C.A.) at 330; R. v. Downey, [2002] O.J. No. 1524 [Q.L.] (Ont.Sup.Ct.) ¶85-86; Jorgensen v. Kelly Peters & Associates Ltd. (1987), 1987 CanLII 2452 (BC SC), 18 B.C.L.R. (2d) 316 (S.C.) at 320. Moreover, once the client has consented to the withdrawal or has discharged counsel, the bench can intervene no further than attempting to urge reconciliation between counsel and client: R. v. C.(D.D.), supra; Leask v. Cronin, supra, at 324; R. v. Bowles, supra, at 543.