Tuesday, 22 October 2013

Ethical Considerations in Getting off the Record
Frances M. Wood
Wood, White & Gold LLP

There are times in every litigators practice when she concludes that for one or more of a variety of reasons, she can no longer represent her client.  Sometimes, the relationship can be brought to a close amicably, and a Notice of Intent to Act in Person can be filed.  If not, the lawyer will have to bring a motion seeking an order of removal.  In doing so, there are two principal issues the lawyer must consider: why and how?

Mutual Release

The main purpose of this paper is to discuss the why and how of getting off the record where a motion is necessary.  But, there are also ethical considerations for counsel where the client either agrees to the removal, or indeed initiates it.  First, unless the client has, in effect, fired his lawyer by serving a Notice of Intention to Act in Person[1], it is good practice to assist the client by taking care of all necessary service and filing requirements.  This is not mandatory, but doing so is neither terribly time consuming nor expensive and benefits both client and counsel.

It is simple courtesy to do so.  More importantly for the lawyer’s own practice, however, is ensuring that the necessary documents are filed.  The Rules provide that counsel is no longer considered counsel of record once the Notice has been received.  But, if it has not been filed, the court may not be aware of the removal, leading to embarrassment and confusion or worse, if the client does not confirm that the Notice was delivered[2].

Second, it is wise to send a closing letter to the client warning her of potential pitfalls or issues to be aware of.  Without being exhaustive, such a letter would include matters such as:

a)      Information regarding any upcoming court dates, discoveries, other events or deadlines[3];
b)      Explanation of any relevant limitation periods;
c)      Explanation of any automatic dismissal procedures;
d)     A brief summary of the lawyer’s advice on a particular issue if that advice is part of what prompted the split; and
e)      If the next court date is imminent, some advice on whether an adjournment can be obtained and if so, how to go about it.

Some suggest that counsel should offer to remain on the record long enough to seek an adjournment of any imminent court date.  While it may not be necessary to go that far, (and the client may say ‘no thank you’ in any event), counsel should certainly consider whether getting off the record immediately before a court appearance will prejudice the client and at a minimum should warn the client of any potential prejudice.

Reasons for Getting off the Record

This paper discusses situations in which counsel wishes to have himself removed from the record.  It does not consider cases, such as conflict of interest cases, in which an opposing party seeks the removal of counsel of record.  Also, it does not consider some of the particular issues which apply to criminal counsel.  Criminal counsel wishing to withdraw should carefully review special provisions of the Rules of Professional Conduct.  There are 4 main reasons counsel seek to get off the record:

a)      There is a breakdown in the relationship – lawyer and client are just not able to work together;
b)      The client has disappeared;
c)      The client provides instructions which would require the lawyer to either break the law or breach the Code of Professional Conduct;
d)     The client can’t/won’t pay.

Some situations result in optional withdrawal by counsel, but in other cases, withdrawal is mandatory. [4]

a)      Breakdown in the Relationship

It is important to note that any time a lawyer gets off the record, there is a potential for prejudice to the client.  By human nature, there is unavoidable attitude of counsel and judges to any litigant who has had several lawyers, and that attitude has the potential to result in prejudice, however minor, to the client.  Also to be considered are the additional costs of a new lawyer familiarizing herself with the file, to say nothing of the wide range of pitfalls if the client ends up representing herself.  Accordingly, counsel should not seek to get off the record for minor transgressions, or issues that do not amount to a fundamental breakdown in the relationship.

Having said that, there will be times when the relationship just is not going to work.  One of the more common reasons is that the client is not prepared to accept counsel’s advice.  It is not a client’s obligation to accept counsel’s advice on every issue and not every refusal to do so merits terminating the relationship, but on some occasions, it is not only acceptable, but wise for a lawyer to walk away.  In my own practice, for instance, I refuse to represent family law litigants who want me to argue their way out of paying appropriate child support (unless they genuinely fit within the narrow exceptions provided for in the legislation), nor will I represent a client whose instructions would result in me committing what I consider to be ‘sharp practice.’  It is not worth the damage to my reputation and the harm such damage would cause to all of my other clients[5].

Counsel should review Kovinich v. Kovinich (2008) 58 C.P.C. (6th) 78 (S.C.J.) which discusses the appropriate test for removal of counsel where the client has lost confidence in the lawyer.

b)      The Absent Client

A lawyer who cannot reach his client or obtain instructions should get off the record.  Timing can be a real issue here.  On the one hand, lawyers should make every effort to locate their clients, but on the other hand, it is a bad idea to wait so long that you are forced to bring your motion for removal on the eve of a motion or trial.  One way to avoid this dilemma is to ensure regular communication with the client and not wait until shortly before a major court appearance or other event, to get in contact with the client.  By doing so, the lawyer will have ample warning of any problems.

In Ramsbottom v. Morning (1991), 48 C.P.C. (2d) 177, the court refused counsel’s request to be removed from the record where counsel had waited more than two years to bring the motion.  While that may be a dramatic example, it serves to point out that delay will work against and not in favour of counsel in the bringing of a motion for removal.  This is all the more so if a court date is imminent.

c)      Law Breaking

A lawyer’s duty is to her client.  But, her duty to the courts and the profession cannot be overlooked.  It is well established that a lawyer cannot accept instructions to break the law or behave dishonestly[6].  Nor should counsel ever accept instructions that would result in a breach of the Rules of Professional Conduct[7].  If, after all reasonable attempts to persuade the client, the client cannot be dissuaded from such conduct, the lawyer has an obligation to have himself removed from the record.  The most dramatic example occurs where counsel becomes aware that a client intends to perjure himself during a trial.  On the one hand, counsel clearly cannot continue to ask questions knowing that the answers will be lies.  On the other, asking to be removed from the record mid-trial is akin to shouting out “my client is a liar”; not only is that a breach of solicitor-client privilege, it is also prejudicial to the client.

Accordingly, every attempt should be made to convince the client to provide instructions and conduct herself in a manner which does force counsel’s hand.  But, at the end of the day, counsel’s duty to uphold the Rules of Professional Conduct trumps.

d)      Non-payment

In most situations, it is reasonable for counsel to seek to be removed from the record when the client is not able or willing to pay his bills[8].  But, timing is key.  Even if a client is not paying, a court may not permit counsel to be removed if, for instance, a trial is imminent or other prejudice would be done to the client.  Best practice is to ensure that retainers are replenished regularly and that any financial concerns are addressed well in advance of court appearances or other major events in the litigation.

e)      Legal Aid

There are special considerations for litigants in receipt of Legal Aid.  Although Legal Aid Ontario (LAO) has no standing to respond to counsel’s motion for removal from the record and cannot affect the outcome of such a motion, it must approve any change of lawyer for its internal billing.  In other words, a lawyer having herself removed from the record could result in a cancellation of the Legal Aid Certificate.  This is something counsel must consider.
Moreover, while non-payment of fees is a major reason for motions for removal with private clients, LAO expressly forbids counsel from quitting a file on the basis that further time allotments have been denied.

How to Get Off the Record

The Rules of Civil Procedure and the Family Law Rules contain slight different provisions for getting off the record.  In addition, there may be some local practice directions which apply.  In Brampton, for instance, it is permissible in the Ontario Court of Justice (some filing clerks say mandatory) to use the 14B motion form (an over-the counter motion) to seek removal from the record.  A copy of a paper prepared by Gerard Michaud on the subject is included at the end for counsel bringing a motion in OCJ Family Court.

a)      Service

Both sets of Rules provide that the Notice of Motion and supporting affidavit must be served upon the client.  Service can be personal or by mail.  Best practice is to serve the client personally whenever possible, to ensure that the client has, in fact, received it.  Notably, in civil matters, the motion and affidavit are served only upon the client.  The opposing party is not required to be served.  In family matters, the opposing party is to be served with the motion, but not the supporting affidavit.  The affidavit is not placed in the Continuing Record.

b)      Contents of Affidavit

The Family Rules set out certain requirements for the accompanying affidavit: the Civil Rules do not.  But, the latter set out requirements for the contents of the resulting order.  Since an order cannot be made without the requisite evidence being before the court, by analogy, that information must also be in the supporting affidavit.

Both sets of Rules require that the client’s last known address (or address for service) and/or any other address where the lawyer believes a copy would come to the client’s attention be indentified.  The Family Rules also require counsel to indicate at what stage the case is at, next steps and any scheduled court dates.  While this is not a requirement under the Civil Rules, it is submitted that counsel would be wise to include this information in any event as it will have a bearing on the court’s decision.

More generally, counsel must set out the reasons why she wishes to be removed from the record[9].  This involves a careful balancing act.  On the one hand, sufficient information must be provided to allow the court to understand the issue.  On the other, counsel’s duty to protect the client’s privilege is not waived by the bringing of such a motion.  Accordingly, the affidavit should not say “My client insists that he will not pay a dime in child support and I cannot convince him otherwise”.  Rather, it should say “My client has lost confidence in my advice,” or some other such vague wording.  In most cases, particularly if the motion is being brought in a timely fashion, that will be enough.

c)      Contents of the Order

The Family Rules provide only that the order contain the client’s address.  The Civil Rules also require a telephone and fax number if available along with specific wording from the Rules.  The wording warns the client that she must either appoint new counsel or service a Notice of Intention To Act in Person within set timelines, failing which her case could be dismissed.  By contrast, under the Family Rules, it is assumed that the client will be acting on her own unless subsequent counsel has been appointed.[10]

d)      Service of the Order

In both family and civil matters, the order removing counsel must be served upon the client and all other parties and filed, with proof of service.  Counsel continue to be counsel of record until such time as that task has been accomplished.  This can cause some issues where counsel brings the motion at the outset of a trial, motion or other court appearance.  Even if the motion for removal is heard first, and is granted, counsel remains on the record until the order has been taken out, served and filed with proof of service[11]

As long as counsel remains counsel of record, he has the duty to appear at all court appearances, even if the client has instructed otherwise[12].  Taken together, this means that even after an order has been made, counsel must appear on the motion/trial until the requisite formalities have been taken care of.  Best practice is to seek a brief adjournment of the matter (depending on the courthouse, an hour should be enough) to take care of the formalities.  If that cannot be accomplished, counsel should ensure to specifically ask the court’s permission not to appear on the matter notwithstanding that the requisite formalities have not been accomplished.

It is not uncommon for a judge to insist that counsel’s removal be delayed until the conclusion of a hearing scheduled that day, if the hearing can reasonably proceed.  This is more likely to be the case where the reason for removal is non-payment of fees as opposed to a more fundamental breakdown in the relationship.  Nevertheless, counsel should never assume that she will be removed from the record prior to the court appearance and neglect to prepare to represent the client to the best of her abilities on the day.

e)      Costs

Although costs of a motion for removal are not typically granted, counsel should request them in appropriate cases.  Disbursements, at least, will often be ordered if counsel can demonstrate that the client has behaved unreasonably.  Do not, however, include your time in preparing the materials and appearing at court in your client’s account.  A client should be billed only for work done on his behalf: counsel seeking to be removed is not work done “on behalf of the client” and is not properly billable.

Counsel should also be aware of Justice Quinn’s decision in Mans v. State Farm Mutual Insurance Company, Mans et al. v. Kiers (1996), 32 O.R. (3d) 786 (S.C.J.) in which costs were awarded against counsel personally when a trial had to be adjourned as a result of counsel’s delay in bringing a motion for removal.

Final Thoughts

Probably the two most important things for counsel to consider when getting off the record are

  1. Will the removal prejudice the client and if so, is it at all avoidable; and
  2. Ensuring that counsel continues to fulfill his responsibilities until formally off the record, even in the face of instructions to the contrary.

[1] In Family Law this is called a Notice of Change in Representation
[2] Pursuant to the Family Law Rules, the change is effective once the Notice has been filed (Rule 4(10)
[3] This information should also be furnished to new counsel
[4] Counsel should review Rule 2.09 of the Rules of Professional Conduct
[5] Rules of Professional Conduct, Rule 4 Commentary “In civil matters, it is desirable that the lawyer should avoid and discourage the client from resorting to frivolous or vexatious objections, or from attempts to gain advantage from slips or oversights not going to the merits, or from tactics that will merely delay or harass the other side. Such practices can readily bring the administration of justice and the legal profession into disrepute.”
[6] Rules of Professional Conduct, Rule 2.02(5)
[7] Rules of Professional Conduct, Rule 2.09 and Rule 4
[8] Johnson v. Toronto, [1963] 1 O.R. 627 (Master) is still considered good law on this subject
[9] Ely v. Rosen, [1963] 1 O.R. 47 (Master)
[10] I have not expressly addressed special considerations where the client is a corporation.  Generally, the same rules apply, but because a corporation cannot be self-represented without the court’s permission, there are specific rules which apply.  Counsel should review Rule 15 carefully.
[11] The Family Law Rules do not state this as expressly as the Rules of Civil Procedure, but the service and filing requirements are the same and counsel should assume that the same principal will apply.
[12] Duca Community Credit Union Ltd. v. Tay (1995) 26 O.R. (3d) 172 (Gen. Div.)

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