Chapter 10 - Withdrawal from Representation Flashcards
When can a lawyer withdraw from representing a client?
(2)
65L
- For good cause - i.e. there has been a serious loss of confidence between the lawyer and the client
- On reasonable notice to the client - after reasonable notice, the client fails to provide a retainer or pay fees or disbursements and no serious prejudice to the client
The lawyer must have a legitimate reason to withdraw and must provide good amount of time or advance warning.
The way in which lawyer informs depends on what 3 factors?
65L
- Type and stage of the matter
- Individual client
- Client’s needs and expectations
What section of the RPC deals with lawyer’s obligations when withdrawing?
S.3.7 of RPC
Rule for Good Cause and Reasonable Notice
R. 3.7-1
What are 4 examples of factors to assess regarding whether a lawyer has good cause for withdrawal
- Nature and stage of the matter
- Relationship with the client
- lawyer’s expertise and experience
Any harm or prejudice to the client that may result from the withdrawal
What is an essential element of reasonable notice
65L
Notification to the client, unless the client can’t be located after reasonable efforts
T/F
Where there is good cause, a lawyer is permitted to withdraw from representation if the lawyer can give the client reasonable notice of the withdrawal
True
What does serious loss of confidence mean?
65R
Trust between the lawyer and client has diminished such that it becomes very difficult for the lawyer to properly serve the client and have a functional lawyer-client relationship
What are some examples of a serious loss of confidence?
- When client deceives the lawyer
- Where client refuses to accept and act on lawyer’s advice on a significant point
- client being persistently unreasonable or uncooperative in a material respect
- material breakdown in communications
- lawyer’s difficulty in obtaining adequate instructions from client
T/F
When faced with a serious loss of confident the lawyer should threaten to withdraw legal services to force the client to make a quick decision on a matter
66L
FALSE
Even when faced with a serious loss of confidence, the lawyer should not threaten to withdraw legal services to force the client to make a quick decision on a difficult question or matter.
When faced with a serious loss of confidence what should the lawyer do regarding withdrawal (2)
Lawyer must give the client reasonable notice of withdrawal.
Lawyer should protect client’s interests to the best of the lawyer’s ability, and notify court, opposing parties and others directly affected by withdrawal without indicating the reasons for the withdrawal UNLESS justified
Non-payment of fees R.3.7-3
Unless ______ , a lawyer may withdraw from representing a client for nonpayment of fees
66L
A lawyer may withdraw from representing a client for nonpayment of fees UNLESS serious prejudice would result from the withdrawal.
Where immediate withdrawal would result in serious prejudice to the client, the lawyer must do what?
66L
The lawyer must continue to act for the client competently and diligently even if the fees remain unpaid. Once the risk of prejudice has passed, the lawyer can withdraw for non-payment of fees.
Before lawyer can withdraw for non-payment of fees, what must the lawyer do
The lawyer has to notify the client that payment of outstanding fees is required and failure to remit payment within reasonable and defined time will result in ending of retainer.
Withdrawal from criminal proceedings:
Whether a lawyer will be permitted to withdraw depends upon the interval between (2)
- The withdrawal - the time and date when the lawyer intends to stop acting for the client; and
- The trial: the time and date the client’s trial begins
T/F
A lawyer acting in a criminal matter may withdraw for non-payment of fees or some other adequate cause if the interval between the withdrawal and the trial of the matter is enough to allow client to retain other rep and to allow the legal representative enough time for prep.
66R
True
T/F
Even when lawyer withdraws due to a serious loss of confidence between the lawyer and client, the lawyer must not tell the court or prosecutor reasons for withdrawal or disclose any confidential client info
True
If interval between trial date and the intended withdrawal isn’t sufficient to allow client to retain new legal rep or to allow a new legal rep to prepare for trial, a lawyer acting in a CRIMINAL matter may withdraw when?
For adequate cause other than no-payment of fees ONLY with permission of court
67L
Where the lawyer know an app to the court for leave to withdraw is required, what should the lawyer do?
Promptly inform Crown counsel and the court of the intention to apply for leave to minimize any inconvenience to the court and witnesses.
What are three circumstance in which even if the lawyer or client wishes to continue the retainer but they can’t?
67L
- Client has discharged the lawyer, regardless of reason
- Client’s instructions require lawyer to act contrary to the Rules or by-laws
- Lawyer is not competent to continue to handle the matter
The Rule provide that when a lawyer leaves a firm, the lawyer and the remaining lawyers must do what 3 things:
- Ensure that “affected clients” are given reasonable notice that the lawyer is leaving the firm
- Advise the affected clients of their options for retaining other representation to handle their legal matters; and
- Take reasonable steps to get instructions from each of the affected clients as to whom each wishes to retain to act in such matters.
When a lawyer leaves, what is a preferable route for the departing lawyer and remaining lawyers to ensure that affect clients receive necessary info
Prepare a joint notification setting out the info. Where the joint notification isn’t feasible the lawyers should consider:
- The extent of the departing lawyer’s work for the affected client
- The affect client’s relationship with other lawyers in the firm; and
- Access to the affected client’s contact info
67R
When a lawyer withdraws from representing a client, the lawyer must try to do what 3 things
68L
- Try to minimize expense
- Avoid prejudice to the client
- Do all that can reasonable be done to assist in smooth transfer of matter to successor legal practitioner
When a lawyer withdraws or is discharged, the lawyer must do what (6)
- Notify client in writing
- Deliver all papers and property to which client is entitled
- Give client all info required in connection with case
- Account for all funds of client
- Promptly render account for outstanding fees + disb
- Cooperate with successor legal practitioner
