10.2 – Withdrawal of Legal Services

Your client may terminate the solicitor-client relationship with you at any time and for any reason. You do not have the same flexibility. When withdrawing your services, you must ensure that your client is treated fairly and not prejudiced by your withdrawal of services. To meet this responsibility of fairness, you must consider your contractual obligations to your client, your ethical obligations, and the requirements of any applicable statute, regulation, or rule.

Contractual Obligations

Before withdrawing, review the retainer agreement between you and your client. A well-drafted retainer agreement will spell out the circumstances under which the entire retainer will be terminated, whether by you or the client. Having a written retainer agreement provides certainty to you both.

Remember though that your retainer agreement must comply with the Code of Professional Conduct. It cannot provide you a right to withdraw that is inconsistent with the Code.

Ethical Obligations

The principal underlying your ethical obligations respecting withdrawal is fairness to your client. Section 3.7-1 of the Code states that you must not withdraw from representation except for good cause and on reasonable notice to your client. To withdraw contrary to the provisions of Chapter 3 of the Code can expose you to disciplinary proceedings.

Good Cause
Commentary 1 to Section 3.7-1 speaks to the requirement of good cause for withdrawal. It advises that your reason for withdrawal must be justifiable and neither capricious, nor arbitrary. In Canadian National Railway Co. v McKercher LLP, 2013 SCC 39, the Supreme Court of Canada held that withdrawing to circumvent the duty of loyalty to a client was not an appropriate reason for withdrawal.

Reasonable Notice
Commentary 2 to Section 3.7-1 speaks to reasonable notice. There are no hard and fast rules as to what constitutes reasonable notice. This will depend on circumstances such as the stage of the matter and the reason for withdrawal. In some cases, what is reasonable will be governed by statutory provisions, rules of court, or more specific ethical obligations such as those set out in Section 3.7-4 of the Code, which provides that in a criminal case “the interval between a withdrawal and the trial of the case [must be] sufficient to enable the client to obtain another lawyer and to allow the other lawyer adequate time for preparation.”

Note also that it is conduct unbecoming to withdraw from representation without notifying the client (Law Society of Saskatchewan v Simaluk, 2012 SKLS 1).

Statutory and Procedural Obligations

Civil Matters
Rule 2-41 of The Queen’s Bench Rules sets out the forms and notices that must be served and filed to effect withdrawal as lawyer of record. These forms and notices ensure that your client, the court, and other parties in the matter are notified of your withdrawal. Failure to comply with Rule 2-41 may result in the court continuing to treat you as lawyer of record.

Criminal Matters
In addition to reviewing s. 3.7-4 of the Code, lawyers acting in criminal matters in the Provincial Court of Saskatchewan, other than counsel for the Crown or Legal Aid duty counsel, should refer to Practice Directive VI. Legal Aid lawyers should review s. 18 of The Legal Aid Act.

In R v Cunningham, 2010 SCC 10, the Supreme Court of Canada held that courts have authority to control their own process and may refuse a lawyer’s attempt to withdraw for non-payment of fees in criminal matters, although noting that this discretion should be used sparingly. If you seek a withdrawal for ethical reasons, the court must grant that withdrawal. For more on withdrawal in criminal matters, see Withdrawal in Criminal Proceedings, which appears later in this module.

Tribunals
When counsel of record in matters before a tribunal, check the rules and practices applicable to such tribunal.