Roger writing the LAWmag

Getting Off The Record: The Lawyer's Oft Catch-22

The Stage

For a lawyer, hoisting his or her law firm crest on the battlefield, called "getting on the record", is simple enough.

There's a form for that.

Getting off the record is simple too: there are forms for that too.

But sometimes getting off the record is resisted by the lawyer's own client or other side and that is the minefield, especially when it is last-minute.

The removal of a representative of a party to litigation at the time it is being proposed may leave the other litigant at a serious disadvantage. It may even seem almost intentional, as a delay or create-chaos tactic, though it rarely is. But where some of the known facts may line up that way, the other lawyer and the judges may be suspicious even, in some cases, where they ought not to be. Houston, we have a problem: if the lawyer has to argue to be removed, that creates a conflict with a lawyer's duty in regards to the client-solicitor privilege.

rubic's cubeJust about any fact, however mundane, that a withdrawing lawyer shares with the judge as to the often very private facts why he or she is withdrawing, as it happens in open court, may be used by the other side to some advantage. When drawn into that discussion, lawyers and their clients are facing a lose-lose situation.

In criminal cases, getting off the record at the wrong time can be devastating to an accused. But even in civil cases, when a lawyer, of the lawyer's own volition and not that of the client, seeks to get off the record, this can significantly compromise the interests of the soon-to-be ex-client.

In civil cases, the lawyer that wants to withdraw files a form, sometimes called a notice of intention to withdraw, or some such similar title. This is served on the other side and the client. If no objection is filed, the lawyer and client can be formally detached without a hearing.

Rarely, but sometimes, an objection is filed and that's where things can get peculiar.

Most private, legal contracts between lawyers and clients (called a retainer) require the lawyer to give "good cause" before he or she can withdraw if protested by the other lawyer or the client. Of course, most clients are not about to take issue with the suggested withdrawal of their lawyer as the last thing they would want is a disappointed and frustrated legal agent arguing their case.

Codes

Every lawyer, sooner or later, and especially those who actually go to court, will face a potentially-nigtmarish situation where, unexpectedly, they cannot continue to represent a certain client.

The American Bar Association (ABA) proposes a model code of attorney conduct in these almost always tricky situations and suggests that pulling-out would be justifiable if:

"... the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client (and) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent.

"Withdrawal is also permitted if the lawyer's services were misused in the past even if that would materially prejudice the client.

"The lawyer may also withdraw where the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.

"Difficulty may be encountered if withdrawal is based on the client's demand that the lawyer engage in unprofessional conduct. The court may request an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation.

"The lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient."

In Canada, each law society has its own rules but many model or defer to the Canadian Bar Association Code of Professional Conduct, itself keeping a close tab on the ABA code

Almost all Canadian jurisdictions take, if not the very word, certainly the principles of the CBA Code which includes, in the commentary to the 2013 edition, at Chapter XII:

"Although the client has a right to terminate the lawyer-client relationship at will, the lawyer does not enjoy the same freedom of action. Having once accepted professional employment the lawyer should complete the task as ably as possible unless there is justifiable cause for terminating the relationship. The lawyer who withdraws from employment should act so as to minimize expense and avoid prejudice to the client.

"Situations where a lawyer would be entitled to withdraw, although not under a positive duty to do so, will generally arise only where there has been a serious loss of confidence between lawyer and client. Such a loss of confidence goes to the very basis of the relationship. Thus, the lawyer who is deceived by the client will have justifiable cause for withdrawal. Again, the refusal of the client to accept and act upon the lawyer’s advice on a significant point might indicate such a loss of confidence. At the same time, the lawyer should not use the threat of withdrawal as a device to force the client into making a hasty decision on a difficult question.

"In some circumstances the lawyer will be under a duty to withdraw (such as) discharge by the client. Other examples are: (a) if the lawyer is instructed by the client to do something inconsistent with the lawyer’s duty to the court or tribunal and, following explanation, the client persists in such instructions; (b) if the client is guilty of dishonourable conduct in the proceedings or is taking a position solely to harass or maliciously injure another; (c) if it becomes clear that the lawyer’s continued employment will lead to a breach of these Rules such as, for example, a breach of the Rule relating to conflict of interest; or (d) if it develops that the lawyer is not competent to handle the matter."

rubic cude solved

Jurisprudence

How far should the inquisiting court go when faced with a withdrawal that is being opposed, where client-solicitor privilege chaos could most certainly reign?

The saviour of all common sense in this area is not in any code. It is in the case law. For example, inter alia, the 1989 British Columbia Court of Appeal decision, written by Justice Hinkson, in Luchka v. Zens:

"... until an issue is raised between the retiring solicitor and one of the other parties or his own client, the court is not called upon to investigate the matter critically."

Twenty years earlier, Justice Darling's opinion in the lower court of that same jurisdiction, in Martin v. Insurance Corp. of British Columbia, was very also helpful:

"(The law firm has applied for a (declaration that the law firm) has ceased to be acting for the plaintiff and for directions as to a new address for delivery....

"I give effect to their application at this juncture. It is amply merited on a failure of the client to instruct or communicate with his solicitors over many months, leaving for abroad without paying the promised retainer or disbursements on discovery and so on."

Scissors or Scalpel

There must always be a pair of scissors around between lawyer and her/his client.

In a perfect world, no one would ever have to go to Court for evolving reasons of trust between lawyer and her client (or those unfortunate cases where the lawyer takes ill), and the client or the other lawyer objects to the withdrawal.

Because of some usually well-intentioned resistance from that client or the other side of the litigation battlefield, the judge has tools and can use them, if not must exercise her or his right to use the judicial scalpel and sever the cord and ending what can become a crisis in the litigation.

If and when a withdrawal by a lawyer is opposed, the judicial scalpel should be at the ready to stop the chaos. Crisis in litigation rarely hurts those people making money in the courtroom on salary or an hourly basis. Instead, it hurts the very real people behind the style of cause.

REFERENCES:

  • American Bar Association, Model Code of Attorney Conduct
  • Canadian Bar Association, Code of Professional Conduct, One jurisdiction, that of British Columbia, adds this commentary to Rule 3-7.1 of the 2013 Code of Professional Conduct for British Columbia: "No hard and fast rules can be laid down as to what constitutes reasonable notice before withdrawal .... When the matter is covered by statutory provisions or rules of court, these will govern. In other situations, the governing principle is that the lawyer should protect the client's interests to the best of the lawyer’s ability and should not desert the client at a critical stage of a matter or at a time when withdrawal would put the client in a position of disadvantage or peril. As a general rule, the client should be given sufficient time to retain and instruct replacement counsel. Nor should withdrawal or an intention to withdraw be permitted to waste court time or prevent other counsel from reallocating time or resources scheduled for the matter in question."
  • Luchka v. Zens, 36 C.P.C. (2d) 271 (1989)
  • Martin v. Insurance Corp. of British Columbia, 101 DLR (3d) 70 (1979)

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