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of a variety of reasons, she can no longer represent her client.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,
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.
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;
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.
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.
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. Nor should counsel ever accept instructions
that would result in a breach of the Rules of Professional Conduct. 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. 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. 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.
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.
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. 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
- Will the removal prejudice the
client and if so, is it at all avoidable; and
- Ensuring that counsel continues to
fulfill his responsibilities until formally off the record, even in the
face of instructions to the contrary.
