Obligations upon Withdrawal from Representation  – Lawyers

Posted: 01/19/2015

interior-new-rulesOn Oct. 1, 2014, amendments to the Rules of Professional Conduct reflecting the Federation of Law Societies’ Model Code came into effect. This is the second of a series of articles to assist lawyers in understanding the amended rules.

A lawyer’s duties to a client upon withdrawal from representation, either because the lawyer is discharged by the client or because the lawyer chooses to or must withdraw from representation, are set out under section 3.7 of the amended Rules of Professional Conduct.

Although a number of the requirements have remained the same under the Rules, there are some new requirements and commentary about which lawyers should be aware.

Rule 3.7-9 requires a lawyer to notify the client in writing upon discharge or withdrawal.

New commentary to Rule 3.7-1 provides guidance on withdrawal from representation when a law firm is dissolved or a lawyer leaves a firm to practise elsewhere.

Generally, when you withdraw from representation, you must try to minimize expense and avoid prejudice to your client. You must do all that can reasonably be done to facilitate the orderly transfer of the matter to the successor legal practitioner [rule 3.7-8].

Upon discharge or withdrawal, under the Rules, you continue to be required to:

  • deliver to or to the order of the client all papers and property to which the client is entitled, subject to your right to a lien;
  • give the client all information that may be required in connection with the case or matter, subject to any applicable trust conditions;
  • account for all funds of the client then held or previously dealt with, including refunding of any remuneration not earned during the representation;
  • promptly render an account for outstanding fees and disbursements; and
  • cooperate with the successor legal practitioner so as to minimize expense and avoid prejudice to the client [rules 3.7-9(b)-(f)].

In addition, you must notify your client in writing, stating:

  • the fact that you have withdrawn;
  • the reasons, if any, for the withdrawal; and
  • in the case of litigation, that the client should expect that the hearing or trial will proceed on the date scheduled and that the client should retain a new legal practitioner promptly [rule 3.7-9(a)].

If you are a member of a firm, your client should be notified that both you and your firm are no longer acting for them [commentary to rule 3.7-9[1]].

Furthermore, the Rules now expressly state that you must comply with the rules of the court upon discharge or withdrawal [rule 3.7-9(g)].

When a law firm is dissolved or a lawyer leaves a firm to practise elsewhere, it typically results in the termination of the lawyer-client relationship as between a particular client and one or more of the lawyers involved.

The commentary to rule 3.7-1[4] provides some guidance on a lawyer’s responsibilities in such cases. Because the client’s interests are paramount, the decision as to who will represent the client must be made by the client in the absence of undue influence or harassment by either the lawyer or law firm.

This may require either or both the departing lawyer and the law firm to notify clients in writing that the lawyer is leaving and advise the client of the options available in the circumstances.

These options may include having the departing lawyer continue to act, having the law firm continue to act, or retaining a new lawyer.

In a criminal context, where a lawyer is discharged or is permitted or required to withdraw, the lawyer must ensure that he or she takes the steps outlined under rule 3.7-4 of the Rules.

Additional resources:

For more information and other resources, visit the New Rules of Conduct page.

See also Client Service and Communication Practice Management Guideline