Sections 3.7-8 and 3.7-9 of the Code set out your obligations as to the manner of withdrawal. You must attempt to minimize expense, avoid prejudice to the client, and take all reasonable steps to ensure the orderly transition of the matter to a successor lawyer, or to the client themselves if they are proceeding without representation.
Specifically, section 3.7-9 deals with notice of withdrawal, delivery of file contents, and accounting for client funds.
If you withdraw services, you must immediately notify the client in writing that you have withdrawn. Note that while Section 3.7-9(a)(ii) of the Code states that you should give the reason for your withdrawal, “if any”, withdrawing for no reason whatsoever is not professional and it is difficult to conceive of a circumstance where withdrawal would take place without reason. If the matter involves litigation, your written notice of withdrawal must advise the client to expect the hearing or trial to proceed on the scheduled date and to retain new counsel promptly. It should also advise the client of any applicable limitation periods.
Be certain to give written notice to the court registry and the other parties (including the Crown) of your withdrawal. See sections 3.7-4, 3.7-6 and commentary, and 3.7-9 of the Code. If your matter is one before the Court of Queen’s Bench, refer to Rule 2-40 of the Queen’s Bench Rules. You may also have to comply with other statutory requirements for withdrawal or notice provisions required by administrative tribunals.
If in doubt about your obligations, it is better to notify interested parties than to not.
Aside from providing notice, it’s advisable to report in writing to the client on the status of the file and to explain any actions that the client is required to take. Even if withdrawing for good cause, you should turn your mind to preserving the client’s legal rights. This both protects you from potential claims and follows your obligation to avoid prejudicing the client. For a checklist on what to include in such a letter, see PracticePro’s booklet, Managing the Lawyer/Client Relationship, which contains a checklist for disengagement/retainer letters.
Remember that you still have an obligation to preserve client confidentiality and, absent client consent, you may not disclose the reasons for your withdrawal in circumstances where the reason for withdrawal arose from confidential client communications.
In addition to written notice of your withdrawal, you must account to the client for all funds you have held on their behalf, including refunding any retainer funds not earned during your representation. To do so you will have to render an account for outstanding fees and disbursements.
When the retainer is terminated, subject to your right to a lien (see section 3.7-9 of the Code, and it’s commentary), you must deliver all papers and property to which the client is entitled to the client or to their new lawyer. Before delivering anything to a successor lawyer, it is good practice to confirm in writing the client’s permission for you to communicate with new counsel and transfer the file to them.
There will be papers in the file that you must deliver to your client but may also need to retain for your own records of the file or for precedent purposes. If maintaining file contents, you do so at your own expense and should not charge the cost of this copying to the client. However, if you’ve transferred the file to your client and are subsequently asked by a successor lawyer to transfer the file to them, it is appropriate to charge for photocopying the second set of documents.
Note: If transferring a file where you were retained on contingent fee agreement, refer to Contingent Fee Agreements in the module on Retainers where you will find some suggested approaches for protecting your fees upon transfer of the file.
What to retain?
Take time to consult document retention requirements (see the module on File Retention) to ensure you are keeping all documents that you are required to retain (e.g., trust accounting records). It is very important to also keep documents that might help you defend against a complaint by the client, opposing counsel, or an opposing party or against an action for professional misconduct or negligence. Ensure that you note important limitation periods for such actions.
As a rule, the client owns the entire contents of the file and you own any documents that you created for your own or your firm’s benefit and for which you did not charge the client. For example, a memorandum of law that you wrote for the client’s matter belongs to the client; working notes that you wrote for your own reference and memory belong to you.
If there is a dispute as to ownership of the contents of the client’s file, take time to research the law to determine which documents you are entitled to keep. For more detail and general guidelines, you can consult File Transfers on the Law Society website. The Law Society of Ontario also provides a list of cases and materials that have dealt with document ownership, which may assist you.