Factors in Counsel’s Removal from Record

In Baradaran v. Alexanian, 2020 ONSC 4759, the court reviewed the case law on the principles applicable on a motion to remove counsel from the record. These principles include the following:

• A lawyer must  have “good cause” or “justifiable cause” to withdraw from representation. The commentary under rule 3.7-1 of the Rules of Professional Conduct states: “Although the client has the right to terminate the lawyer-client relationship at will, the lawyer does not enjoy the same freedom of action. Having undertaken the representation of a client, the lawyer should complete the task as ably as possible unless there is justifiable cause for terminating the relationship”.

• Withdrawal may be sought for an ethical reason, meaning that an issue has arisen in the lawyer-client relationship where it is now impossible for counsel to continue to act for the client. It would be inappropriate for the court to require counsel to continue to act when to do so would put her or him in violation of professional responsibilities.

• Withdrawal may also be sought for non-payment of legal fees or for another non-ethical reason. The court considers whether it is feasible for the client to represent herself or himself in the litigation, whether the client has other means of obtaining representation, whether counsel gave reasonable to the client, the impact on the client from delay in the proceedings, and the impact on the other parties in the proceedings.

The court noted that prejudice to a client from a withdrawal is always a significant factor to consider. Serious prejudice militates strongly against permitting a withdrawal.

The court is also concerned with ensuring that the removal of counsel does not cause serious harm to the administration of justice. The Rules of Professional Conduct indicate: “Every effort should be made to ensure that withdrawal occurs at an appropriate time in the proceedings in keeping with the lawyer’s obligations. The court, opposing parties and others directly affected should also be notified of the withdrawal”.