Lawyers frequently ask the Practice Advisors whether circumstances justify firing a client. Even if the answer is yes, sometimes the lawyer is obligated to continue acting.

When withdrawing, a lawyer must avoid causing prejudice to the client and to others, including witnesses, the court, jurors and opposing counsel and parties. A lawyer may be obliged to continue regardless of a breakdown in the lawyer client-relationship.

Unlawful or unethical instructions entitle the lawyer to withdraw, but the cost to the client or the administration of justice may be high.[1] For example, a client intent on committing perjury poses an ethical dilemma. If a lawyer fires the client in the midst of trial he or she risks painting the client as a liar. Soldiering on, however, would be a breach of the lawyer’s duty of candour to the court.

The reasons for withdrawing may be less dramatic in most cases: non-payment of fees, conflicts of interest, non-cooperation or other actions may undermine the relationship between lawyer and client. While these situations justify withdrawal, in certain cases lawyers may not withdraw if it will cause undue prejudice to the client.

Prejudice is more than mere inconvenience. The Supreme Court stated in R. v. Cunningham[2] that, when counsel seeks to withdraw for non-payment of fees, the court may refuse the request if the withdrawal would harm the administration of justice. It is essential that lawyers request leave to withdraw at the earliest possible time, and that the client has reasonable notice to obtain other counsel. The court may refuse to grant a request to withdraw only in “exceptional circumstances”, and the discretion should be used “exceedingly sparingly”.

Delay is the most frequent concern. For instance, a trial may be imminent, a deal closing or a limitation looming.[3] If a hearing can be adjourned or a closing postponed, and no one is adversely affected, then a lawyer may withdraw. In contrast, in R. v. Montgomery[4], the court refused a pre-trial application to withdraw where the accused had been in remand for over two years.

Other relevant factors include availability of replacement counsel, deteriorating evidence, the feasibility of the client’s self-representation or the complexity of the case.[5] The Ontario case of Nicolardi v Daley[6] discussed the client’s ability to find a new lawyer. Trial was over five months away, but if the client had taken his lawyer’s advice to find alternate counsel, he would have been able to retain a new lawyer seven months before trial. There was no peril resulting from a change of counsel, nor did the accused represent that he would be unable to pay a new lawyer to take over this file.

In the face of a conflict of interest, a lawyer will be required to withdraw from a representation. However, a desire to accept a new, potentially lucrative, client does not provide good cause to withdraw from legal services of the current client.[7] It is not appropriate for a law firm to “’dump’ one client in order to take on another ‘conflicted’ prospective client whose file looks more attractive.”[8]

Briefly, a duty of loyalty binds a lawyer to zealous commitment to the client’s cause. There may be many circumstances which entitle a lawyer to unfettered termination of the retainer. But, in “exceptional circumstances”, the lawyer must see the matter through if the client will be unduly prejudiced by the withdrawal.

Written by: Ross McLeod, Practice Advisor