A lawyer gives the thumbs down to his client. Stock photo by Getty Images.
Nobody likes to get dumped. It’s as true with relationships as it is with legal representation.
The Patrick Kane sexual assault case has recently made headlines for the brouhaha surrounding the rape kit, which the prosecutor in the case called an “elaborate hoax.”
Well, the other issue surrounding the case was the alleged victim’s lawyer quitting. Thomas Eoannou said he wasn’t comfortable representing his client anymore, because of her mother’s account of the evidence bag that was said to have held the rape kit.
In other words, he lost confidence in the mother’s version of events the finding of the evidence bag, though Eoannou was quick to point out he still supported his former client’s allegations.
Still, losing confidence in a client sometimes leads to a lawyer’s withdrawal from a case.
This begs the question: when can your lawyer dump you?
Strict limits are placed on the withdrawal of representation from cases in Canada, and those are regulated by the provincial law societies of all provinces and territories.
All of the law societies agree a lawyer cannot cause prejudice when leaving the case. That means prejudice, not only to the client, but the other parties: counsel on the opposing side; the courts; witnesses; and so on.
What does prejudice mean in these cases where an attorney is trying to quit a case? It means the withdrawal of the lawyer doesn’t create unfairness to the client. Nor can withdrawal be done for an improper reason.
According to the Supreme Court of Canada case R v. Cunningham, an attorney can also not withdraw from a case where “withdrawal would harm the administration of justice.”
Furthermore, there are some cases where a lawyer must withdraw from representation and some where a lawyer can choose to withdraw.
Some reasons include:
Usually a lawyer has the option to withdraw from a case when:
- When there is a conflict of interest to the lawyer. For example, if there is joint representation and one party asks to withhold information from the other, which can cause a potential conflict.
- If the client’s instructions would mean breaking the lawyer’s ethics and even after an explanation why this action cannot be taken, the client’s instructions don’t change.
- When the client is acting in a malicious, dishonourable or harmful manner during proceedings and/or the lawyer knows the client has committed, is committing or is planning to commit a criminal act.
- When the client acts in a dishonest or fraudulent manner.
- When the lawyer is not competent to handle the matter.
- The lawyer has a serious loss of confidence in the client and vice versa.
- There is non-payment for services rendered. However, even where there is non-payment if it’s shortly before a trial or another close deadline and/or causes prejudice, the lawyer will likely not be able to withdraw.
There is also the way a lawyer quits a case. It must be as early as possible, reasonable notice has to be given, enough notice has to be given so you can find new representation, etc.
As you can see, it’s not easy to withdraw representation, but it can be done. So please don’t give your lawyer a good reason to dump you.