Family Matters! New practice resources available now.

Family law practitioners assist with legal issues that represent some of the most important matters their clients will face. We’ve been working with volunteer lawyers who have the expertise to help develop some new and substantial Family Law resources. This effort generates up-to-date content to reflect the many significant recent changes, including procedural changes, amendments to the Divorce Act, and notes on potential future changes to provincial legislation.

The results of that work are now being realized!

We are excited to announce that our free library of Practice Area Fundamentals written resources is expanding with a nine-chapter collection focusing on Family Law, including a chapter devoted to child protection and guardianship.

This collection represents a high-value resource as changes continue to unfold in this practice area.

Available now: 

Chapter 1: Initial Considerations

Chapter 2: Commencing an Action and Interim Relief

Chapter 3: Divorce, Parenting, Support and Protective Relief

Chapter 4: Property and Pensions

Chapter 5: Discovery, Preparation for Trial and the Trial

Chapter 6: Enforcement, Variation and Appeals

Chapter 7: Agreements

Chapter 8: Adoption, Assisted Reproduction and Parentage

Chapter 9: Child Protection and Guardianship

 

Withdrawal from Representation

From time to time, we receive calls from counsel who are seeking guidance about their ethical obligations when they seek to withdraw as counsel.

Rule 3.7-1 of the Code of Professional Conduct states that a lawyer must not withdraw from representation of a client except for good cause and on reasonable notice to the client. The related commentaries remind lawyers that although the client has the right to terminate the lawyer-client relationship at will, a lawyer does not enjoy the same freedom of action. Having said that, there may be justifiable cause for a lawyer to terminate the solicitor-client relationship.

Rule 3.7-1 of the Code of Professional Conduct states that a lawyer must not withdraw from representation of a client except for good cause and on reasonable notice to the client. The related commentaries remind lawyers that although the client has the right to terminate the lawyer-client relationship at will, a lawyer does not enjoy the same freedom of action. Having said that, there may be justifiable cause for a lawyer to terminate the solicitor-client relationship.

Rule 3.7-2 of the Code deals with “optional withdrawal” and sets out that a lawyer may withdraw if there has been “a serious loss of confidence between the lawyer and the client.” In those circumstances (more fully described in Commentary 1), a lawyer may withdraw in accordance with Rules 3.7-8 and 3.7-9. These rules set out the manner of withdrawal and outline specific ethical obligations owed upon either discharge by the client or withdrawal by the lawyer.

Rule 3.7-2 of the Code deals with “optional withdrawal” and sets out that a lawyer may withdraw if there has been “a serious loss of confidence between the lawyer and the client.” In those circumstances (more fully described in Commentary 1), a lawyer may withdraw in accordance with Rules 3.7-8 and 3.7-9. These rules set out the manner of withdrawal and outline specific ethical obligations owed upon either discharge by the client or withdrawal by the lawyer.

Can a lawyer withdraw if a client fails to provide a retainer or funds on account of disbursements? Rule 3.7-3 states that a lawyer may withdraw in those circumstances in accordance with the referenced “manner of withdrawal” obligations unless “serious prejudice to the client would result.” Consider the situation where a lawyer asks for a retainer to conduct a trial that is scheduled to proceed in six months but waits until a week before the trial to follow up with the client who has not yet provided that retainer. The client says they cannot pay so the lawyer wants to withdraw before prepping for the pending trial that is fast approaching. Clearly, serious prejudice to the client would result if the lawyer brought a motion to withdraw as counsel so close to the trial date.

But what happens when a client fires their lawyer or persists in instructing the lawyer to act contrary to ethical obligations? What if the lawyer is not competent to continue handling a client’s legal matter? Rule 3.7-7 of the Code states that in those situations, a lawyer has an obligation to withdraw; it is no longer a situation where counsel has the “option” to withdraw.

If a client has fired a lawyer or if the lawyer must withdraw for ethical reasons, the lawyer must still comply with the “manner of withdrawal” rules. In a matter before the court, the lawyer may be required to seek an order permitting the withdrawal. In cases where the lawyer is required to file a notice of motion seeking to withdraw, the affidavit in support of the motion should be factual and should not contain information that would otherwise be subject to solicitor-client privilege.

Being discharged by the client is not privileged information. If a lawyer has been fired by a client, the lawyer can no longer make representations to the court on behalf of the client. They no longer have a client from whom to take instructions.

Should you find yourself in a situation where you must file a motion to withdraw as counsel, be aware that there is case law relating to when a court may deny such a motion. For example, in R. v. Cunningham, 2010 SCC 38 the Supreme Court of Canada held that if withdrawal is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel’s request. In exercising its discretion on the withdrawal request, the court will consider a non-exhaustive list of factors, including whether it is feasible for the accused to represent themselves, other means of representation, impact on the accused from delay in the proceedings (particularly if an accused is in custody), impact on the Crown and any coaccused, impact on complainants, witnesses and jurors, fairness to defence counsel, the history of the proceedings, and if counsel gave reasonable notice to the accused to allow the  accused to seek other means of representation or if counsel sought leave of the court to withdraw at the earliest possible time.

On the basis of such factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice and if so, withdrawal may be refused.

However, the Supreme Court in Cunningham also cited other cases for example R. v. C. (D.D.) (1996), 110 C.C.C. (3d) 323, leave to appeal refused, [1997] 1 S.C.R. vii , at p. 328 and R. v. Deschamps, 2003 MBCA 116, at para. 23 and held that if withdrawal is sought for an ethical reason, then the court must grant the withdrawal.

If you find yourself in a situation where you are unsure about whether you have an ethical obligation to withdraw, please contact the Law Society for some guidance.

For additional information, review the Law Society practice resource: