Withdrawal of Legal Services

Treat Your Client Fairly

As a guiding principle, you must ensure your client is treated fairly. While it is fair for your client to withdraw from the relationship with you at any time, the converse is not true. You must respect your client's right to terminate the agreement. As the relationship is contractual, your entitlement to fees will be determined by the terms of the retainer agreement. In the case of a contingency fee agreement this may mean that the amount of your fees must wait until the conclusion of the litigation: McQuarrie, Hunter v. Foote (1982), 41 B.C.L.R. 123 (C.A.). If the retainer agreement specifies that an hourly fee will be payable upon termination of the relationship, that rate will likely apply even if the lawyer considers it to undervalue the work done: Ayeras v. Oostlander, 1999 CanLII 4304 (B.C.S.C.)

There are rules governing when you may (or must) withdraw your services and procedures that must be followed in each situation. First, there is a duty of “candour and fairness” to the courts and other tribunals, as articulated in the Canons of Legal Ethics in Chapter 2 of the Code of Professional Conduct. The Ethics Committee of the Law Society has found that:

In our opinion, in addition to a lawyer's professional obligations to be fair to the client and not to withdraw for an improper purpose, there is a responsibility to the courts, tribunals and others involved in the justice process to ensure that sufficient notice of withdrawal is given so that inconvenience and waste of time and resources is minimized. As a result, there will be circumstances in which, although obligations to the client have been met, it will still be unethical for the lawyer to withdraw. This is so even though the court or tribunal has no power at law to force the lawyer to act for a client. 1

There are limited circumstances where a lawyer may be forced to continue acting for an accused in a criminal matter, where allowing the withdrawal of services would seriously harm the administration of justice. These limited circumstances were set out by the Supreme Court in R v. Cunningham.

Professional Responsibility

The decision to withdraw is a matter of professional responsibility; to withdraw contrary to the provisions of Chapter 3 of the Code of Professional Conduct will expose you to disciplinary proceedings before the Benchers. In Leask v. Cronin, [1985] 3 W.W.R. 152, 18 C.C.C. (3d) 315 (B.C.S.C.) it was held that the decision to withdraw is not reviewable by the court, save for the authority to cite a lawyer for contempt in circumstances where there is evidence that the withdrawal was done for an improper purpose. 2

1 See the article "Restatement of the 1994 Opinion of the Ethics Committee" in the March-April 1998 Benchers' Bulletin.

2 For a discussion of the wording of Chapter 3 of the Code of Professional Conduct, and its nuances, see Law Society of British Columbia, Appendix A: Bencher's Meeting Minutes.