When You May Withdraw Services (Optional Withdrawal)

There are several circumstances where you may withdraw your services:

• Loss of confidence. You may withdraw if there is a serious loss of confidence between you and your client (section 3.7-2, Code). This often arises where the client deceives you or refuses to accept and act upon your advice on a significant point.
  • Be careful when withdrawing based on a point of contention in respect of your advice. Your client is permitted to question your advice and may need to do so for understanding and clarification. Bear in mind that advice is, by definition, a recommendation. You may, for example, recommend settlement but this does not mean that your client cannot choose to go to trial.
• Inadequate Instructions. You may be entitled to withdraw if your client refuses to provide you with adequate instructions. The Code, however, warns against using the threat of withdrawal as a device to force a hasty decision by the client on a difficult question. See Code, s. 3.7-2, Commentary [1].
• Inappropriate Client Conduct. You many withdraw if your client is persistently unreasonable, difficult, uncooperative, or disrespectful to you and/or your staff. In these circumstances, it may be prudent to first warn your client against such conduct and provide an opportunity for rectification, but this will depend on the severity of the behavior. Neither you, nor your staff, should be subject to abusive behavior.
• Non-Payment. You may withdraw if your client does not provide a retainer or pay your invoices. In this circumstance, you must give reasonable notice to your client of your intention to withdraw. Further, you must consider the timing of your withdrawal, which must not prejudice your client. See Code, s. 3.7-3.

Regardless of the reason for withdrawal, remember that the principle underlying your ethical obligations respecting withdrawal is fairness to your client: you must not withdraw from representation except for good cause and on reasonable notice to your client.

Section 3.7 of the Code provides that unfairness to the client depends on the circumstances of the case, but normally includes consideration of whether the withdrawal would:

• occur at a stage of the proceeding that would require the client to retain another lawyer to perform some or all of the same work again,
• leave the client insufficient time to retain a new lawyer, or
• leave the replacement lawyer insufficient time to properly prepare and represent the client.