Withdrawal in Criminal Proceedings

Before withdrawing from your representation of a client in criminal proceedings, always review sections 3.7-4 to 3.7-6 of the Code. If you wish to withdraw services before an upcoming criminal trial because your client has not paid your fees, or you have another adequate reason for withdrawal, then you must ensure both that:

  • – your client has sufficient time to obtain a lawyer prior to the trial; and
  • – a new lawyer has adequate time to prepare for the trial.

Regarding what constitutes an “adequate” reason for withdrawal, see When You May Withdraw Services (Optional Withdrawal), which appeared earlier in this module.

According to section 3.7-4, if the period between your notice of withdrawal and the trial is sufficient to satisfy the two conditions listed above, then you must also:

  • – notify the client, in writing, that you are withdrawing and the reason for your withdrawal;
  • – account to your client for any money received on account of fees and disbursements;
  • – notify Crown counsel, in writing, that you no longer acting for the client;
  • – notify the clerk or registrar of the appropriate court, in writing, that you are no longer acting in a case if your name appears on the records of the court as acting for the accused; and
  • – comply with the applicable Rules of Court.

If the date set for trial is not sufficient to allow the client to find a new lawyer or for a new lawyer to adequately prepare for trial, then you cannot withdraw for non-payment of fees (Code, section 3.7-5). If the date set for trial is not sufficient to allow the client to find a new lawyer or for a new lawyer to adequately prepare for trial and you are withdrawing for something other than non-payment of fees, then, unless your client instructs otherwise, you should attempt to have the trial date adjourned and may withdraw from the case only with the permission of the court (Code, section 3.7-6).

Note that even in your actions to withdraw, 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. For example, if your reason for obligatory withdrawal is that your client “persists in instructing you to act in a manner contrary to professional ethics”, you should not disclose any details in this regard when requesting the permission of the court to withdraw. Stating that the withdrawal is for “ethical reasons” should be sufficient, and no further explanation should be offered or required.

Regarding the factors the court may consider in exercising its jurisdiction to permit or refuse counsel to withdraw, see R v Cunningham, 2010 SCC 10 and R v Nguyen, 2015 ABQB 672.