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Code of Professional Conduct
CHAPTER XII
WITHDRAWAL
RULE
The lawyer owes a duty to the client not to withdraw services except for good cause and upon notice appropriate
in the circumstances.1
Commentary
Guiding Principles
1. 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.2
2. The lawyer who withdraws from employment should act so as to minimize expense and avoid prejudice to the client,
doing everything reasonably possible to facilitate the expeditious and orderly transfer of the matter to the successor
lawyer.3
3. Where withdrawal is required or permitted by this Rule, the lawyer must comply with all applicable rules of
court as well as local rules and practice.
Obligatory Withdrawal
4. In some circumstances, the lawyer will be under a duty to withdraw. The obvious example is following 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 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 Rules relating to conflict of interest; or (d) if it develops that the lawyer
is not competent to handle the matter. In all these situations there is a duty to inform the client that the lawyer
must withdraw.4
Optional Withdrawal
5. Situations where a lawyer would be entitled to withdraw, although not under a positive duty to do so, will as
a rule 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.5 The lawyer may withdraw if unable to obtain instructions from the client.6
Non-payment of Fees
6. Failure on the part of the client after reasonable notice to provide funds on account of disbursements or fees
will justify withdrawal by the lawyer unless serious prejudice to the client would result.7
Notice to Client
7. No hard and fast rules can be laid down as to what will constitute reasonable notice prior to withdrawal. Where
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 so far as possible 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.8
Duty Following Withdrawal
8. Upon discharge or withdrawal the lawyer should:
(a) deliver in an orderly and expeditious manner to or to the order of the client all papers
or property to which the client is entitled;
(b) give the client all information that may be required about the case or matter;
(c) account for all funds of the client on hand or previously dealt with and refund any remuneration not earned
during the employment;
(d) promptly render an account for outstanding fees and disbursements;
(e) co-operate with the successor lawyer for the purposes outlined in paragraph 2.
The obligation in clause (a) to deliver papers and property is subject to the lawyer's right
of lien referred to in paragraph 11. In the event of conflicting claims to such papers and property, the lawyer
should make every effort to have the claimants settle the dispute.9
9. Co-operation with the successor lawyer will normally include providing any memoranda of fact and law that have
been prepared by the lawyer in connection with the matter, but confidential information not clearly related to
the matter should not be divulged without the express consent of the client.
10. The lawyer acting for several clients in a case or matter who ceases to act for one or more of them should
co-operate with the successor lawyer or lawyers to the extent permitted by this Code, and should seek to avoid
any unseemly rivalry, whether real or apparent.10
Lien for Unpaid Fees
11. Where upon the discharge or withdrawal of the lawyer the question of a right of lien for unpaid fees and disbursements
arises, the lawyer should have due regard to the effect of its enforcement upon the client's position. Generally
speaking, the lawyer should not enforce such a lien if the result would be to prejudice materially the client's
position in any uncompleted matter.11
Duty of Successor Lawyer
12. Before accepting employment, the successor lawyer should be satisfied that the former lawyer approves, or has
withdrawn or been discharged by the client. It is quite proper for the successor lawyer to urge the client to settle
or take reasonable steps toward settling or securing any account owed to the former lawyer, especially if the latter
withdrew for good cause or was capriciously discharged. But if a trial or hearing is in progress or imminent, or
if the client would otherwise be prejudiced, the existence of an outstanding account should not be allowed to interfere
with the successor lawyer acting for the client.12
Dissolution of Law Firm
13. When a law firm is dissolved, this will usually result in the termination of the lawyer-client relationship
as between a particular client and one or more of the lawyers involved. In such cases, most clients will prefer
to retain the services of the lawyer whom they regarded as being in charge of their business prior to the dissolution.
However, the final decision rests in each case with the client, and the lawyers who are no longer retained by the
client should act in accordance with the principles here set out, and in particular commentary 2.13
NOTES
1. Cf. CBA-COD 11; Que. 3.03.04, .05; B.C. G-5; IBA B-4; ABA-MR 1.16; ABA EC 2-32, DR 2-110(A),
(C). For cases, see 4 Can. Abr. (2d) under "Barristers and Solicitors: Termination of Relationship",
paras. 101-02 and supplements. See also Orkin, pp. 90-95.
2. In appeals to the Supreme Court of Canada see Rule 14(1) of that Court, whereunder the lawyer of record in the
court below may be deemed to represent the client for purposes of the appeal.
3. Cf. ABA DR 2-110(A).
Provincial Rules of Court provide for the giving of notice of change of solicitors and for the making of applications
for leave to withdraw.
For cases see 4 Can. Abr. (2d) under "Barristers and Solicitors: Change of Solicitors", paras. 342-58
and supplements.
In legal aid cases provincial regulations may also require notice to the plan administrators; see, e.g., in Ontario
O. Reg. 59/86 as amended, s. 62(1)(a).
On an application under the Ontario rules for an order that the lawyer has ceased to act, the supporting material
must show the particular facts warranting the lawyer's ceasing to act: Ely v. Rosen (1963), 1 O.R. 47 (Ont.
H.C.).
"I have no doubt that the learned trial Judge seriously erred in law when he purported to direct counsel for
the accused that he could not withdraw from the case, notwithstanding the fact that the accused, his client, apparently
wished to discharge him.", per Jessup, J.A. in Regina v. Spataro (1971), 3 O.R. 419 at 422 (Ont. C.A.).
4. Cf. CBA 3(2) and 5(5); IBA B-7; ABA DR 2-110(B).
"... this case where [N.R.] is held to have sworn affidavits of discovery which were false and where the solicitor
... should not have allowed them to be sworn if he had done his duty which he owed to the Court.... The solicitor
cannot simply allow the client to make whatever affidavit of documents he thinks fit nor can he escape the responsibility
of careful investigation or supervision. If the client will not give him the information he is entitled to require
or if he insists on swearing an affidavit which the solicitor knows to be imperfect or which he has every reason
to think is imperfect, then the solicitor's proper course is to withdraw from the case.", per Lord Wright
in Myers v. Elman (1940), A.C. 282 at 322 (H.L.).
For a panel discussion chaired by Gale, C.J.O. on the rights and obligations of lawyers with respect to withdrawal
in criminal cases, see Law Society of Upper Canada, Special Lectures (1969) at pp. 295-99.
5. Cf. ABA DR 2-119(C).
"No solicitor ... need put up with abuse and accusations such as were alleged to have been made here and would
be fully entitled, after them, to withdraw from the case. An accusation of fraud, in fact, would make it improper
for the solicitor to continue to act for the client, since it showed that the client had lost confidence in him.",
per Urquhart, J. in Re Solicitors Act; Collision v. Hurst (1946), O.W.N. 668 at 671 (Ont. H.C.).
6. Failure to instruct counsel constitutes repudiation which counsel could accept and ter-minate the employment.
7. "An attorney is ordinarily justified in withdrawing if the client fails or refuses to pay or secure the
proper fees or expenses of the attorney after being reasonably requested to do so.", proposition in Corpus
Juris Secundum approved and applied in Johnson v. Toronto (1963), 1 O.R. 626 (Ont. H.C.).
8. "If the case is scheduled to be tried on a date which will afford the accused ample time to retain another
counsel, a lawyer who has not been paid the fee agreed upon may withdraw.... But if he waits until the eve of the
trial so that there is no time for another counsel to prepare adequately ... it becomes too late for him to withdraw.
He must continue on ....", from panel discussion, note 4, supra, at pp. 295-96; and cf. Alta. 8: "If
a member accepts a retainer to represent an accused at a preliminary hearing and not at the trial . . . [he] should
have a clear and unambiguous understanding with his client to that effect and ... should advise the Court at the
beginning of the inquiry ...".
9. "... [C]ounsel should be generous in accounting for any moneys which have been received but not yet earned,
bearing in mind that a great deal of the time he has spent ... may be of little value to the other counsel who
is required to take over.", ibid., at p. 296.
As to the proper disposition of papers, which is frequently a perplexing problem, see Cordery on Solicitors
(6th ed.) at pp. 118-20 for a discussion of law and principles and a table of categories with supporting authorities.
10. "It is quite apparent ... that the applicant dismissed the ... solicitor without just cause .... The common
law right of a solicitor to exercise a lien on documents in his possession where he has been discharged without
cause by his client is well recognized, subject, however, to certain exceptions ... where third parties are involved,
the Court may interfere ... always upon the basis that whereas a solicitor may assert a lien . . . he should not
be entitled to embarrass other parties interested.", per McGillivray, J.A. in Re Gladstone (1972),
2 O.R. 127 at 128 (Ont. C.A.).
11. See Morden, "A Succeeding Solic-itor's Duty to Protect the Accounts of the Former Solicitor" (1971)
5 Law Soc. U.C. Gaz. 257.
12. Cf. CBA 4(1).
13. "Subject to any question of lien, the client's papers in possession of the firm belong to the client and
cannot be the subject of agreement as against him, but as between themselves solicitors can agree that on
dissolution the clients of the old firm and their papers shall either be divided between the dissolving partners,
or belong to those continuing the business of the firm ....", Cordery on Solicitors (6th ed.) at pp.
463-64 (emphasis added).
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