Withdrawal for Non-payment of Fees

Chapter 3, rule 3.6-9 of the Code of Professional Conduct provides:

If a lawyer and client agree that the lawyer will act only if the lawyer’s retainer is paid in advance, the lawyer must confirm that agreement in writing with the client and specify a payment date.

You are not required to act on a client's behalf unless you have been sufficiently retained (Farris, Vaughan, Wills & Murphy v. Wong, 2002 BCSC 4, at paragraph 18). However, Chapter 3, rule 3.7-3 of the BC Code  provides that a lawyer cannot withdraw when fees are not paid when due unless there is sufficient time for:

  • the client to obtain the services of another lawyer, and
  • the replacement lawyer to adequately prepare for trial.

It is good practice to establish your right to withdraw services for non-payment in the retainer letter (see the module on Retainers). As a general caution, however, see Re A.L., 2003 ABQB 905 at paragraphs 49-51, where the court recognized a strict ethical obligation to notify a client regarding withdrawal of services, even in the face of a clear contractual right to unilaterally withdraw services.

Although Leask v. Cronin, [1985] 3 W.W.R. 152, 18 C.C.C. (3d) 315 (B.C.S.C.) suggests that the court cannot question your authority to withdraw, the Alberta Court of Appeal has held that “no counsel should ever employ [the term 'unhappy differences have arisen'] to refer to non-payment of fees. That is not a matter making it ethically impossible for [counsel] to proceed.” (R. v. Creasser, 1996 ABCA 303,leave to appeal to the S.C.C. denied (February 20, 1997), at paragraph 26).

In criminal matters the Supreme Court of Canada has determined that the court does have the jurisdiction to refuse an application to withdraw legal services for non-payment of fees in limited circumstances. The refusal of the court to allow withdrawal of services should be done sparingly and only to prevent serious harm to the administration of justice. Also, in such circumstances disclosure of the reason for withdrawal of services - non-payment of fees - where unrelated to the merits of the case and where there will be no prejudice to the accused does not attract the protection of solicitor-client privilege (R v. Cunningham [2010] 1 SCR 331)