In a civil suit, a lawyer for one party usually can stop acting without anyone’s permission, by giving sufficient notice to the client. (At times, resigning is too harmful to be allowed, e.g. just before a scheduled trial.) And the client can usually fire the lawyer too.
More formalities are very useful. The lawyer should have proof of what has happened and when, and proof of any agreement. Acting in a lawsuit gives the lawyer duties to the court, and sometimes some duties to opposing parties. The lawyer so acting is usually on the records of the court. That shows that the lawyer owes duties to the court. He or she is usually the (former) client’s address for service, so changing that is very important.
So a lawyer always needs several reliable ways to contact his or her client, and to prove that the communication arrived. A client who can be reached only one way, does not reveal locations, or who often cannot be reached promptly, raises suspicion. Given email and cellphones, there is no excuse for that. (How to reach all other parties in the lawsuit is also important.)
A lawyer who wishes to cease to act (by a “notice of withdrawal”) should follow all the steps in R. 2.29. After that, ten more days must elapse, to make the withdrawal fully effective.
Sometimes the lawyer wishes to stop acting because the client has found a new lawyer. The usual and best way is for the new lawyer to file and serve on all concerned a notice naming the new lawyer and the new address for service. Then the former lawyer need do no more. Such a notice by the new lawyer operates at once with no waiting period. See Pearson v. Pearson 2020 ABCA 260 (July 7), ¶’s 37-38. (In theory the client could instead serve such a notice, but that is not very common.)
Sometimes the new lawyer is slow to file a notice that he or she is now the solicitor. Or apparently the new notice of solicitor was not properly served on everyone.
Maybe neither paying either lawyer nor custody of the file should impede any of that; but sometimes they do. A lawyer is understandably reluctant to go on the record without assurance of payment. And maybe until he or she can get the file. The former lawyer may find himself hung up between heaven and earth. If service on the (former) client could be proved, the former lawyer should file, serve, and prove service of a formal notice of withdrawal. The situation should not last much longer than ten more days. But if provable service is not completely possible, the outgoing lawyer has a dilemma. He or she may need to bring an application. The new lawyer is not held back by such considerations (Pearson case at ¶ 39). The client who is switching lawyers cannot hold hostage by non-payment the opposing party (ibid).
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.
