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Maureen Whelton Stevenson Whelton MacDonald & Swan LLP

April 24, 2017

A LITIGATOR’S GUIDE to the Challenging

Lawyer–Client Relationship

*CLE17-0040500-A-PUB*

DISCLAIMER: This work appears as part of The Law Society of Upper Canada’s initiatives in Continuing Professional Development (CPD). It provides information and various opinions to help legal professionals maintain and enhance their competence. It does not, however, represent or embody any official position of, or statement by, the Society, except where specifically indicated; nor does it attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein should be used prudently, as nothing in the work relieves readers of their responsibility to assess the material in light of their own professional experience. No warranty is made with regards to this work. The Society can accept no responsibility for any errors or omissions, and expressly disclaims any such responsibility.

© 2017 All Rights Reserved

This compilation of collective works is copyrighted by The Law Society of Upper Canada. The individual documents remain the property of the original authors or their assignees.

The Law Society of Upper Canada 130 Queen Street West, Toronto, ON M5H 2N6Phone: 416-947-3315 or 1-800-668-7380 Ext. 3315Fax: 416-947-3991 E-mail: [email protected] www.lsuc.on.ca

Library and Archives Canada Cataloguing in Publication

A Litigator’s Guide to the Challenging Lawyer-Client Relationships

ISBN 978-1-77094-579-1 (Hardcopy)ISBN 978-1-77094-580-7 (PDF)

1

Chair: Maureen Whelton Stevenson Whelton MacDonald &

Swan LLP

Moderator: Shantona Chaudhury Pape Barristers Professional Corporation Presenters: Shantona Chaudhury Pape Barristers Professional Corporation

Barbara Legate, C.S Legate & Associates LLP

Andrew Lewis Paliare Roland Rosenberg Rothstein LLP

Mark Veneziano Lenczner Slaght Royce Smith Griffin LLP

April 24, 2017 12:00 p.m. to 1:30 p.m.

Total CPD Hours = 1 h 30 m Professionalism Hours

Webcast Only

SKU CLE17-0040500

A LITIGATOR’S GUIDE

to the Challenging

Lawyer-Client Relationship

2

Agenda 12:00 p.m. – 12:05 p.m. Introduction of Opening Remarks

12:05 p.m. – 12:20 p.m. Principles and Practicality of Dealing with Challenging

Clients 12:20 p.m. – 12:35 p.m. Protecting Yourself: Defensive Lawyering Before, During

and After the Relationship

12:35 a.m. – 12:50 p.m. Effective Strategies with Challenging Client Relationships

12:50 p.m. – 1:05 a.m. Difficult Conversations 1:05 p.m. – 1:20 p.m. Parting Ways: When should you? When do you have to?

What is the best way to do it? 1:20 p.m. – 1:30 p.m. Questions and Answer Session 1:30 p.m. Program Ends

1

April 24, 2017

SKU CLE17-0040501

Table of Contents TAB 1 Defensive Lawyering: Representation without Surprises …... 1 - 1 to 1 - 7 Barbara Legate, C.S, Legate & Associates LLP TAB 2 Seven Tips to Deal with the Challenging Client Relationship ........................................................................ 2 - 1 to 2 - 1 Mark Veneziano, Lenczner Slaght Royce Smith Griffin LLP TAB 3 Difficult Conversations ......................................................... 3 - 1 to 3 - 5 Andrew Lewis, Paliare Roland Rosenberg Rothstein LLP TAB 4 Pulling the Chute: Motions to Get Off the Record

Pursuant to Rule 15.04........................................................ 4 - 1 to 4 - 11 Shantona Chaudhury, Pape Barristers Professional Corporation

A LITIGATOR’S GUIDE

to the Challenging


TAB 1

Defensive Lawyering: Representation without Surprises

Barbara Legate, C.S. Legate & Associates LLP

April 24, 2017



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DEFENSIVE LAWYERING:

REPRESENTATION WITHOUT SURPRISES

Barbara Legate, C.S.

Legate & Associates LLP, Personal Injury Lawyers

April 24, 2017 LSUC Webcast

Except for the most sophisticated, clients are worried and uneducated about what is involved with the solicitor and client relationship. They come with pre-conceived notions that range from “lawyers are all crooks and after money” to “they know everything and I know nothing”.

Wherever a particular client lands on the spectrum, the best strategy is to educate the client about you, your practice, the areas of law you practice in, and what you can and cannot do for him or her. Don’t leave anything to the imagination; speak bluntly and clearly about money and retainers. Have a clear idea about the limits of your relationships and communicate those. Finally, report regularly.

1. BEFORE THE RELATIONSHIP a. Have a written intake or cold-call procedure; INSIST ON CONTACT DATA b. Have a clear conflicts procedure c. Confirm what happened as a result of the cold-call in writing: retainer next; wait

and see and who is responsible for follow-up; not retained; referrals if any d. Make your next step, if any clear, in writing e. Preface any advice given as based on the limited information given by the caller f. Give them options g. Keep copies of notes of all contacts and letters written.

2. AT THE OUTSET OF THE RELATIONSHIP: DECIDING ON THE RETAINER

a. Evaluate the potential client face-to-face b. Educate about your role c. How will the case be evaluated d. Don’t give an assessment before you have the facts e. Recognize that the honest client wants your objective advice f. Recognize a case that you cannot handle and suggest options for the potential

client if you can g. Be clear about what will terminate a retainer h. Review the retainer document with the potential client

i. Include termination clauses ii. Talk about examples of when you will terminate a relationship iii. Talk about settlement, trial and appeals iv. Discuss the need to be together on the strategy v. Let the client know you have to evaluate veracity

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3. MONEY a. Be clear and blunt b. Raise the issue before the client does c. Be transparent d. Ask if there are questions e. Refer back to the relevant portions of the retainer document f. Contingency fees

i. Is part of your Retainer Agreement ii. Cannot be “costs plus” absent Court approval iii. Be clear about who pays for disbursements iv. Remind clients about contingency fees when reporting.

4. HAVE A PLAN

a. End every meeting or contact with a statement of what is the plan b. Document the plan c. Put your plan into effect d. Communicate your plan to your team and set time-lines

5. REPORTING

a. Evaluate your practice and determine at which stages you will report b. Reports should occur in writing

i. After the initial evaluation and fact gathering ii. At regular intervals iii. At each major step in the litigation iv. After discovery with an opinion v. Prior to trial with an opinion

c. Never send an Account without a report d. Reports should include

i. What you have done ii. What you are waiting for others to do iii. What you have from the client iv. What you are waiting for from the client v. The status of the action or undertaking vi. What the next steps are vii. The plan (i.e. the overall plan with time lines) viii. Who is involved in the case and his or her role ix. How much money you have spent/ accounts/ as required/C.F.A. reminder

6. SETTLING

a. Meet the client to obtain instructions b. Re-educate the client on the method of evaluation c. Clarify the positives and negatives of the case-this should not be the first time d. Ranges e. It is their case not yours

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f. Explain the process – e.g. mediation, pre-trial, court approval etc. g. Clarify and discuss what the options are and advantages, disadvantages, cost

and benefit of each (time, duration, money, risk, emotional cost) h. Explain the other side’s role

7. TAKING LITIGATION INSTRUCTIONS a. Summarize the risks b. Restate the options c. Give time to consider d. Written instructions

8. CLOSING THE FILE

a. Report b. Account c. Trust d. Written direction e. Do you have an ongoing role? Do you and the client agree on that?

i. Clarify ii. Document

Attachments:

1. File Tracking Meeting Agenda This is prepared and updated weekly. Staff and lawyers meet to ensure critical dates are identified and ticklers created; upcoming critical dates are reviewed and plans documented. The balance of the form forces accountability for cases at various stages and permits questions staff and lawyers have of each other to be discussed.

2. “Red Sheet” Card stock Red Document that confirms a Limitation Period is identified, verified by lawyers and logged.

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FILE TRACKING MEETING (FTM)

This is a template for a weekly meeting Legate & Associates holds to ensure critical dates are reviewed and files continue to move forward.

File Tracking Meeting - <date>

In Attendance: (list Staff) Upcoming week

Date Event Notes/prep

April 25/17 Jones Discovery Prep meeting (BL)

Draft Affidavit of Documents and Life/Income chronology to be reviewed

April 27-8/17 BL at conference

Next Week

Date Event Notes/prep

May 1/17 Aaron Team Meeting Discovery Prep (BL, DM, team)

Instructions re Exhibits for discovery to be given Status of defence productions – what is outstanding Review theory of causation

Critical Dates Reviewed in TM<info management system>

Initials Date Concerns

Jr April 19 Smith follow up service – date for service July 15. Int April 20 Jones confirmation of motion due April 25

Booker SoL on July 1/17 still no response from Dr. Knowitall re st of care. Instructions?

Sr. April 21 Booker. Sol July 1. KP will follow up with Dr. Knowitall. He was away. Report back May 1 meeting

DM April 23 No concerns BL April 24 No concerns

Claims to be Issued

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Limitation Date

File <initials of responsible lawyers>

Status

July 1/17 Booker (DM/BL) issue claim Waiting on Dr. Knowitall. Fup May 1 please bf

July 15/17 Smith (DD/ BL)service. NG is following up with process server (April 20)

Discoveries to be set up

File <initials of responsible lawyers> Date AoD served Progress Made

Brown (DM/BL) Dec. 1.16

Counsel have finally agreed on dates and confirmed with MD clients. NG will confirm dates and serve NoI

O/S Discovery letters/undertakings


Date of last FTM Status

Brenda Bumped (DD)

February 15, 2017 Discovery fup done Letter to client partially drafted and OS Will be finalized by May 15

O/S Reporting letters


Date of last FTM Status

Sore (MC) February 1, 2017 Letter sent, needs fup with client re productions. NG will fup April 20

O/S Drafts to be approved

Drafted Item Date Drafted Lawyer Approval

Status

Notice of Motion for undertakings and refusals

Jan 15/17 DM Link ___ Please advise. Reviewed. Sorry for delay. Is ready to go/DM

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Set Down Status (Trial Records filed waiting for Assign. Crt.)

1. Blotty v Big River Hospital. Filed Jan 15/17. AC due now. Will fup court house. (Jr)

New Files

File Name/ Associate

Retainer File Summary

White Binder

Status

Joseph, F. Retainer meeting scheduled for May 10.

Scheduled? To follow May 10.

Given to client? Yes, April 2

Investigations started Need instructions from lawyer on limitation period Need amount of retainer and CF to add to retainer.

B/Fs –

1. Smith – was client emailed fup re IRB?

2. Bloom – should we serve jury notice? BL- yes.

Questions

1. Brown. Now we have dates for discovery, and notices are going out, do you want gists for witnesses prepared? (KP)

2. Manly. I did not receive instructions on service of engineering report. Reminder 90 days coming up on May 12. (NG)

Team Priorities for this week (to be identified in FTM)

BL: discovery prep Brown. Booker review draft st of c when started.

DM: Smith, Booker

SR etc.

Next TEAM meeting:

Identify matters without claims and then identify barriers to issuing.

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RED SHEET

Plaintiff V. Defendant

TORT NO. DATE OF INCIDENT yyyy-mm-dd Client Name: -------------------------------------------- Street Address: ------------------------------------------- City/Province: -------------------------------------------- Postal Code: -------------------------------------------- Home Telephone: ------------------------------------------- Date of Birth (DOB): yyyy-mm-dd Minor Limitation (if applicable) yyyy-mm-dd Date Limitation expires yyyy-mm-dd 180 DAYS PRIOR yyyy-mm-dd 60 DAYS PRIOR yyyy-mm-dd 30 DAYS PRIOR yyyy-mm-dd 14 DAYS PRIOR yyyy-mm-dd 7 DAYS PRIOR yyyy-mm-dd 1 DAY PRIOR yyyy-mm-dd LIMITATIONS CHECKED BY ASSOCIATE: ____________________ LIMITATIONS CHECKED BY PARTNER: _____________________ CLAIM ISSUED: _____________________ CLAIM SERVED: _____________________ Team: _____________________

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TAB 2

Seven Tips to Deal with the Challenging Client Relationship

Mark Veneziano Lenczner Slaght Royce Smith Griffin LLP

April 24, 2017



SEVEN TIPS TO DEAL WITH THE CHALLENGING CLIENT RELATIONSHIP

Mark Veneziano

Lenczner Slaght LLP

1. Set the record straight

2. Protect your staff/colleagues

3. Bite your tongue – no need to respond to hostile emails/letters

4. Do not argue on the telephone

5. Face to face meetings are always better

6. Protect yourself

7. Termination – there may come a point

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TAB 3

Difficult Conversations

Andrew Lewis Paliare Roland Rosenberg Rothstein LLP

April 24, 2017



DIFFICULT CONVERSATIONS

Andrew Lewis: Paliare Roland Rosenberg Rothstein LLP

This short paper is about some common difficult conversations all litigators will need to have

with their clients from time to time, and how one might handle them.

Although in this paper I will provide some suggested “lines” or approaches to take in certain

scenarios, the number of permutations these sorts of discussions can take is without limit. The

only blanket advice I can offer is in the form of the following four general admonitions: “Be

straight. Be clear. Be firm. Be civil.”

There are two rules in the Rules of Professional Conduct in particular to bear in mind when

delivering hard news or advice to clients:

Quality of Service

3.2-1 A lawyer has a duty to provide courteous, thorough and prompt service to clients. The quality of service required of a lawyer is service that is competent, timely, conscientious, diligent, efficient and civil. *** Honesty and Candour

3.2-2 When advising clients, a lawyer shall be honest and candid. Commentary

[1.1] A lawyer has a duty of candour with the client on matters relevant to the retainer. This arises out of the rules and the lawyer's fiduciary obligations to the client. The duty of candour requires a lawyer to inform the client of information known to the lawyer that may affect the interests of the client in the matter.

[1.2] In some limited circumstances, it may be appropriate to withhold information from a client. For example, with client consent, a lawyer may act where the lawyer receives information on a "for counsel's eyes only" basis. However, it would not be appropriate to act for a client where the lawyer has relevant material information about that client received through a different retainer. In those circumstances the lawyer cannot be honest and candid with the client and should not act.

[2] The lawyer's duty to the client who seeks legal advice is to give the client a competent opinion based on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law, and the lawyer's own experience and expertise. The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results.

These rules inform my general admonitions referred to above, and the specific examples given

in the balance of this paper.

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Hard Opinions to Hear

By “opinion” I mean your legal opinion about the likely outcome of a case based on the set of

facts as you know them. Your job as a lawyer is to tell your client their legal situation, whether

or not it is what they want to hear.

When your opinion is not what the client wants to hear, while you need to be sensitive to the

client’s reaction and to how it makes them feel, you need to ensure that they nevertheless

really do “hear” what you are saying. Many clients in difficult situations will hear only what they

want to hear, and look for words they can hang onto that, in their minds, cast their situation in

a more positive light than you intend.

You need to make sure the client fully appreciates that the law is against them, and why that is,

so they can make an informed decision as to their next steps. If you soft-peddle the bad news,

you are not doing your client any favours, and you are not doing your job.

On many occasions after delivering a negative assessment of their case to a client I have

received comments like: “I get the feeling you aren’t on my side”. Or: “I need to know that you

are with me on this, not against me.” My response to such comments is along the lines of: “I am

on your side, and I am with you. That’s why I’m telling you what the problems are with your

case. You aren’t paying me to be your cheerleader. You are paying me to give you correct legal

advice.” If the person persists, I maintain the same position. On more than one occasion I have

told the client that if they want a cheerleader rather than a lawyer who is doing their job, they

should take their case elsewhere. No one has ever taken me up on that.

Hard Advice to Hear

By “advice” I mean practical advice to a client about what they should do or how they should

conduct themselves.

On a substantive level, this can be about advising a client to settle for an unpalatable sum, or in

the case of a plaintiff by folding up the tent and not proceeding at all. Again, it is your job to

give unpleasant advice where appropriate.

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Where this can be particularly difficult is in circumstances where the case once seemed worth

pursuing/defending, but for whatever reason no longer is. Clients can become entrenched in

their positions, and of course their investment of time and money to that point can solidify

their entrenchment, and sometimes give rise to recriminations. In these circumstances,

comments like: “You told me I had a good case” are sometimes heard. Your response might be

along the lines of: “Yes, but then they produced the emails in which [insert how it torpedoes the

case here]” or “Yes, but then they hired a forensics team and [insert what damning information

was located].” Note that these responses avoid saying: “You did not tell me about that evidence

and if you had I would have advised you differently.” Personalizing it is not helpful because it

puts the client on the defensive and could result in an argument about whether you should

have probed more as to the existence of the evidence the other side later produced. The point

of such a discussion is not to ascribe blame but, rather, to give the proper advice based on the

situation at that time.

More prosaically, it is common to have to tell a client that the way they are behaving is running

up their bill. Some clients become “addicted” to legal advice and call or email to get your take

on every last thought they have about the case, or to talk about things that are not legitimately

the subject of legal advice at all. Other clients may provide information to you in a cumbersome

or unhelpful way such that it unnecessarily increases the time you need to spend to assimilate

it. Clients are legitimately concerned about how much they pay their lawyers, but they do not

always connect their own behaviour to the quantum of their bills. Therefore, it is incumbent on

you in such circumstances to tell the client, politely but clearly, that their bills are going to be

higher than they might expect unless they alter the way in which they are doing things. For

example, you might say: “You are the client and you should feel comfortable calling me any

time. But I need to remind you that I’m docketing our conversations, and they really do add up. I

don’t want you to be surprised at your bill.” In this way you are not criticizing the client, but you

are making sure they are aware of the direct relationship between their phone habits and their

expenditures in the case.

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A third common category where you might have to give a client advice they do not want to

hear is where they are behaving or are intending to behave in such a way as to prejudice their

legal and/or business interests. If they are doing that, they need to hear it before they can do

any more damage. For example: some clients you have been advising on an exit from their

current jobs to set up a competing business tell you that they intend to take confidential

information from their current employer with them. What they want you to tell them is that it

is okay to do so. What you need to tell them is that, apart from breaching their obligations to

their employer, they risk prejudicing themselves and their future business by behaving in a

clearly unlawful way, even if it does provide an immediate business advantage.

In all instances, the client is free to ignore your advice. They are the client. However, they need

to do so with full knowledge of the potential consequences.

Hard Results to Hear

If you have already given the client the hard opinions and hard advice referred to above, you

(hopefully) will not have to have a hard discussion with them about an adverse judgment. They

will either have taken your advice and settled, or if not, they at least will not be surprised at the

result.

Rather, hard discussions about adverse results tend to occur in cases where you and the client

thought there was a good chance of success. While most clients know intellectually that they

can in theory lose a good case (and no doubt you will have told them that is so – there are no

sure things in litigation), getting the news can be crushing.

The initial call is the hardest one. And in most instances it is important to call first, not to simply

email a pdf of the decision. If it is at all possible to reach the client by phone, you should deliver

the initial bad news that way, not by email. I would usually start the conversation off with

something like: “Do you have a minute? Good. Listen, I just received the court decision in your

case and I wanted to talk with you before sending it over. I’m afraid it’s a bad result. You lost.”

There is no point in sugar-coating it or taking time getting to the point. Just as you probably go

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right to the last paragraph to see the ultimate result, the client also wants to know the bottom

line. Give it to them.

Depending on the client it may be best to tell them that they should read the decision and then

you can talk later that day, or the next day, about next steps, and whether an appeal might be

viable, after you both have had a chance to digest it.

Whatever you do, do not delay in having this conversation, as difficult as it might be. The client

is entitled to know the result without delay.

Doc 2048107 v1

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TAB 4

Pulling the Chute: Motions to Get Off the Record Pursuant to Rule15.04

Shantona Chaudhury Pape Barristers Professional Corporation

April 24, 2017



PULLING THE CHUTE: MOTIONS TO GET OFF THE

RECORD PURSUANT TO RULE 15.04

By Shantona Chaudhury and Justin H. Nasseri (Pape Barristers)

Submitted for the Law Society of Upper Canada: A Litigator’s Guide to the

Challenging Lawyer-Client Relationship

April 24, 2017

1

Pulling the Chute: Motions to Get Off the Record Pursuant to Rule 15.04

By Shantona Chaudhury1 and Justin H. Nasseri2

INTRODUCTION

Sometimes relationships just aren’t meant to last, including those between

solicitor and client. Issues can arise in the context of a lawyer-client relationship which

make it unadvisable or impossible for the lawyer to continue to act. If the client is

unwilling to terminate the lawyer’s retainer, the lawyer may have to take matters into his

or her own hands and move before the court for an order removing him/her from the

record pursuant to Rule 15.04 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg.

194 (the “Rules”).

In this paper, we will first discuss the operation of Rule 15.04 and the

circumstances that may lead to its use, and then offer some practical tips and

considerations for bringing a successful removal motion and the process of getting off the

record.

RULE 15.04: BACKGROUND

A client who wishes to terminate a lawyer’s retainer may do so. The client/ex-

client must then serve the other parties in a proceeding either with notice that s/he is now

self-represented, or with notice of change of counsel.3

1 Shantona Chaudhury is a partner at Pape Barristers. 2 Justin Nasseri has a civil litigation practice at Pape Barristers.. His practice consists primarily of appeals,

commercial litigation matters, and plaintiff-side medical negligence cases. 3 Rule 15.03 of the Rules.

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But what happens if the lawyer wants to end the retainer because the

circumstances require it, and the client will not agree to the termination? Enter Rule

15.04 (1): “[a] lawyer may move, on notice to his or her client, for an order removing him

or her as lawyer of record.” Notice of motion must be served on the client under Rule

15.04(2). Service can be made on the client in a number of ways: it may be effected

personally or by an alternative to personal service, or, in circumstances in which this is

not possible (for example because the client has disappeared), a copy can be mailed to the

client at his or her last known address, and another address, if any, where the lawyer

believes the copy is likely to come to the client’s attention.

Notably, the Rule does not require service of the lawyer’s motion record on other

parties. This is likely because a removal motion has the potential prejudice the client’s

position by disclosing information about his or her relationship with the lawyer.

However, once the order removing the lawyer from the record is obtained and entered it

must be served on both the client and every other party in the proceeding pursuant to

Rule 15.05(b).

CIRCUMSTANCES THAT GIVE RISE TO A RULE 15.04 MOTION

The situations that lead counsel to bring Rule 15.04 motions tend to fall into three

categories: (i) Cases in which there is a serious impediment to the relationship between

the lawyer and client4; (ii) cases where the lawyer has a disqualifying conflict of interest5;

and (iii) cases in which the lawyer may be a witness in the proceeding.6 In this paper, we

4 See Nicolardi v. Daley, [2003] O.J. No. 1303 (Master); Kovinich v. Kovinich, [2008] O.J. No. 5917

(S.C.J.); Johnson v. Toronto, [1963] 1 O.R. 627 (Master). 5 Gluckstein v. Checkmate Capital Partners Inc., 2013 ONSC 5244 (S.C.J. Commercial List); Marinangeli

v. Mariangeli [2004] O.J. No 3082 (S.C.J.); Chiefs of Ontario v. Ontario, [2003] O.J. No. 580 (S.C.J.). 6 The Honourable Paul M. Perell and the Honourable John W. Morden, The Law of Civil Procedure in

Ontario, 2nd ed. (Markham: LexisNexis, 2014) at 59-61; Graham v. Ontario, [2006] O.J. No. 763; Rothman

v. Nesbitt Burns Inc., [2004] O.J. No. 86 (S.C.J.).

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will focus on the first category: cases where the relationship between lawyer and client

has been compromised.

BREAKDOWN OF RELATIONSHIP BETWEEN LAWYER AND CLIENT

The relationship between the lawyer and the client may become compromised to

the extent that the lawyer no longer wants to or is no longer able to act. There are several

scenarios that can give rise to this sort of situation:

Inability to Get Instructions

Lawyers cannot act without instructions. Thus if the client refuses to or

significantly delays giving the lawyer instructions to take necessary steps in a proceeding,

or if the lawyer simply cannot reach the client to request instructions in the first place,

withdrawal may be warranted. The communication problem renders it impossible for the

lawyer to act.

Breakdown of Relationship

Not every marriage can be saved. Sometimes a lawyer and client may not work

well together. If a client repeatedly refuses to accept or act upon the lawyer’s advice on

significant points, this may indicate a loss of confidence justifying withdrawal.7 The same

may be said if a client berates the lawyer or questions their competence, abilities, and

advice on a repeated basis, or is persistently unreasonable or uncooperative on a material

issue.8 Moreover, if a client gives instructions that the lawyer believes s/he should not

follow because they are unethical or otherwise improper, the lawyer may have to move to

get off the record.

7 The Honourable Paul M. Perell and the Honourable John W. Morden, The Law of Civil Procedure in

Ontario, 2nd ed. (Markham: LexisNexis, 2014) at 59-60. See also Commentary to Rule 3.7-2 of the Rules of

Professional Conduct. 8 Commentary to Rule 3.7-2 of the Rules of Professional Conduct.

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Payment of Retainer/Fees/Disbursements

Financial issues may also lead to a removal motion, in particular if the client is

unwilling or unable to pay the lawyer.9 Lawyers are not expected to work for free. The

Rules of Professional Conduct specifically provide at s. 3.7-3 that where, “after

reasonable notice, the client fails to provide a retainer or funds on account of

disbursements or fees, a lawyer may withdraw unless serous prejudice to the client would

result.”

THE CONNECTION BETWEEN RULE 15.04 AND THE RULES OF PROFESSIONAL

CONDUCT

Moving to get off the record is a not a decision to be taken lightly. It is expected

by both the Law Society of Upper Canada and the courts that lawyers moving under Rule

15.04 will be able to provide a strong justification for getting off the record, and that the

client has had ample notice of the lawyer’s intentions and the opportunity to remedy the

problem.

According to Rule 3.7-1 of the Law Society of Upper Canada’s Rules of

Professional Conduct,, “[a] lawyer shall not withdraw from representation of a client

except for good cause and on reasonable notice to the client. The commentary to this

Rule explains that once a lawyer has “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.”10


Ontario, 2nd ed. (Markham: LexisNexis, 2014) at 59. See also Johnson v. Toronto [1963] 1 O.R. 627

(Master). 10 Commentary to Rule 3.7-1 of the Rules of Professional Conduct.

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The commentary also provides helpful guidance as to the manner in which a

lawyer should pursue getting off the record. The lawyer should ensure that reasonable

notice is provided to the client “unless the client cannot be located after reasonable

efforts.” Timing of the motion is critical. While there are no hard and fast rules, a lawyer

“should not desert the client at a critical stage of a matter or at a time when withdrawal

would put the client in a position of disadvantage or peril.”11

The courts consider the Rules of Professional Conduct when deciding motions to

get off the record.12 Counsel must persuade the court that withdrawal is justified and that

it is consistent with the lawyer’s ethical obligations:

Unlike a client who need not justify his or her decision to end the lawyer and

client relationship, a lawyer must justify withdrawing his or her representation.

On a motion to be removed from the record, the lawyer must file material

setting out enough facts to enable the court to determine whether there is good

cause for a lawyer’s withdrawal.13

Understandably, the courts are somewhat hesitant to allow lawyers to get off the

record. There is a persistent access to justice problem in our courts. That problem is

aggravated when a litigant loses his or her counsel. The litigant either has to represent

him/herself, which is difficult if not impossible depending on the complexity of the

proceeding, and is generally challenging for all involved. Or the litigant has to find new

counsel, which can delay the proceeding, and can be expensive for the litigant because of

the costs associated with searching for new representation, and with the new lawyer

getting up to speed on the file. Consequently, even if the lawyer has good reason to be

removed from the record, the Court may decline to make the order if the lawyer’s client

11 Commentary to Rule 3.7-1 of the Rules of Professional Conduct. 12 See for example Nicolardi v. Daley, [2003] O.J. No. 1303 (Master). 13 The Honourable Paul M. Perell and the Honourable John W. Morden, The Law of Civil Procedure in

Ontario, 2nd ed. (Markham: LexisNexis, 2014) at 59. See also Ely v. Rosen, [1962] O.J. No. 642 (Master).

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is at a critical stage in the proceeding, or at a time when withdrawal may put the client at

a significant disadvantage.14

JURISPRUDENCE

Loss of Confidence

Nicolardi v. Daley is a leading case on Rule 15.04 in which Master Dash

discusses the principles for getting off the record where there is a loss of confidence

between lawyer and client.15 In that case, the client, Nicolardi, was suing his former

lawyer and was represented by a lawyer named Davis. Eventually, Davis brought a

motion to be removed as counsel of record on several grounds. The only successful

ground was that there had been an irreparable breakdown of relations between Davis and

Nicolardi. Davis’s affidavit revealed that Nicolardi

was raising various concerns and criticisms with respect to services undertaken

by me and other solicitors in this office, in the past. Such criticisms have served

to undermine our relationship of solicitor and client, t the point where I am not

willing to cintinue to act on his behalf with respect to this action.16

Master Dash agreed that it would be inappropriate for Davis to provide any

further details because doing so could prejudice his client’s interests in the action and

would breach solicitor-client privilege.17

Nicolardi’s mother, who was privy to the details of the litigation, filed an affidavit

that contained correspondence from Nicolardi in which he criticized Davis. These

criticisms related to the lawyer’s alleged “failure to follow instructions, failure to honour

commitments about taking certain steps in the litigation, preparing motion material that


Ontario, 2nd ed. (Markham: LexisNexis, 2014) at 59. 15 Nicolardi v. Daley, [2003] O.J. No. 1303 (Master). 16 Nicolardi v. Daley, [2003] O.J. No. 1303 (Master) at para. 11. 17 Nicolardi v. Daley, [2003] O.J. No. 1303 (Master) at para. 11.

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was deficient” and so on.18 Despite these criticisms, “Nicolardi stated in court that he did

not want Davis to be removed as his solicitor”,19 and Davis had to bring the Rule 15.04

motion.

Master Dash explained that the test on a removal motion is not based on the

client’s wishes, but on the existence of a loss of confidence:

The test is not whether the client wants the solicitor to continue to act for him.

The test is whether there has been such loss of confidence that justifies the

solicitor’s withdrawal. In my view it is obvious that the solicitor-client

relationship has broken down. Mr. Nicolardi does not have confidence in

Davis’s competence, integrity or opinion. It was reasonable for Davis to ask to

withdraw. It is asking the impossible of the solicitor to continue to represent a

client in light of such criticism about the services that he has provided. 20

Even in the face of a significant loss of confidence, “the withdrawal or the timing

of the withdrawal should not materially prejudice the client.”21 In Nicolardi, Master Dash

concluded that the client would be able to find alternate counsel before the matter

proceeded to trial, or, in the alternative, he would be able to obtain an adjournment.22

Nicolardi argued that the court should consider the “negative optics”: it would

look bad for him in the proceeding if his lawyer got off the record. This concern was

particularly acute in this case, since the proceeding was a lawsuit against another former

lawyer of Nicolardi’s. Master Dash rejected this argument because, inter alia, these

“negative optics” were outweighed by the client’s loss of confidence in his lawyer.23

Master Dash’s approach in the Nicolardi decision is reflective of the courts’

pragmatic approach to Rule 15.04 motions. If the lawyer has provided sufficiently clear

and strong evidence that his or her relationship with the client has been compromised,

18 Nicolardi v. Daley, [2003] O.J. No. 1303 (Master) at para. 13. 19 Nicolardi v. Daley, [2003] O.J. No. 1303 (Master) at para. 14. 20 Nicolardi v. Daley, [2003] O.J. No. 1303 (Master) at para. 15. [emphasis added] 21 Nicolardi v. Daley, [2003] O.J. No. 1303 (Master) at para. 16. 22 Nicolardi v. Daley, [2003] O.J. No. 1303 (Master) at para. 17. 23 Nicolardi v. Daley, [2003] O.J. No. 1303 (Master) at para. 20.

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courts will agree to remove the lawyer as long as the client is not seriously prejudiced by

the removal. In Nicolardi, there was time for the client to find new counsel before the

next major step in the proceeding.

Refusal to Pay Fees

Nicolardi was relied on by Pelletier J. in Kovinich v. Kovinich, a case in which a

litigant’s lawyers were removed from the record because (i) the client did not pay her

outstanding fees to the firm despite repeated requests to do so; and (ii) the client had

raised concerns about counsel’s services: “not-withstanding certain successes and

progress, the matter was not proceeding as the Respondent [the client] wished and

expected.”24

Although the case involved both non-payment of fees and loss of confidence the

court held that non-payment alone would be sufficient justification for removal: “non-

payment of fees as agreed upon can form the basis upon which counsel may be

removed….In the case of a modest initial retainer, it is not unreasonable for a solicitor to

require something further to be paid on account after considerable work has been done on

the case.”25

PRACTICAL TIPS

Deciding Whether and When to Withdraw

Moving to get off the record is an option of last resort. Before doing so, counsel

should ensure that they have taken all reasonable steps to resolve the difficulties with the

client. If the issue is payment issue, consider options such a putting the client on a

payment plan. If the issue is that the client is unresponsive, take every reasonable step

24 Kovinich v. Kovinich, [2008] O.J. No. 5917 (S.C.J.) at paras. 41-45. 25 Kovinich v. Kovinich, [2008] O.J. No. 5917 (S.C.J.) at para. 41.

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(phone call, letter, email, etc.) to contact him/her and stress how important it is that s/he

responds.

If the problem is incurable, inform the client in writing (and if possible in person)

that in your view the solicitor/client relationship cannot continue, and that if the client

does not terminate the retainer, you will move to withdraw under Rule 15.04. It is

important to inform the client that your duties as his/her counsel do not cease until the

motion is heard and you are removed from the record.

The client should receive ample notice of your intention to bring the motion so

that she or he will be prepared for it and can begin looking for other counsel. As the Law

Society’s commentary to Rule 3.7-1 of the Rules of Professional Conduct says, while

“[n]o hard and fast rules can be laid down about what will constitute reasonable notice

before withdrawal…the governing principle is that the lawyer should protect the client’s

interests to the best of the lawyer’s ability and should not desert the client at a critical

stage of a matter or at a time when withdrawal would put the client in a position of

disadvantage or peril.”

Compiling the Motion Record

When compiling the record for a Rule 15.04 motion, ensure that there is an

affidavit from a lawyer who has dealt directly with the client. Include the status and

anticipated schedule of the legal proceeding. (Is there a motion or trial coming up? Have

discoveries concluded? Are there any steps in the near future that require counsel’s

immediate attention?) The affidavit should also clarify the nature and extent of the

lawyer/law firm’s involvement on the file. Finally, it should clearly set out the reasons for

removal (e.g. failure to pay fees, or client’s refusal to provide instructions).

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Although the affidavit needs to justify the removal, it must do so without

revealing confidential or privileged information. The lawyer should take great care to

avoid revealing anything that could prejudice the client’s interests in the action. If this

appears unavoidable, the lawyer may wish to move for directions before a judge or

attempt to obtain a sealing order over the affidavit.

The affidavit should be sworn by a person other than the lawyer arguing the

motion. In the case of a sole practitioner, s/he is evidently the affiant and will thus need

to retain separate counsel to argue the removal motion.

Process of Getting off the Record

Obtaining a removal order is not the end of the matter. The Rules of Professional

Conduct specify at Rule 3.7-8 that the lawyer “shall try to minimize expense and avoid

prejudice to the client and shall do all that can reasonably be done to facilitate the orderly

transfer of the matter to the successor legal practitioner.” Rule 3.7-9 requires that:

3.7-9 Upon discharge or withdrawal, a lawyer shall

(a) notify the client in writing, stating

(i) the fact that the lawyer has withdrawn;

(ii) the reasons, if any, for the withdrawal; and

(iii) in the case of litigation, that the client should expect that the hearing or trial

will proceed on the date scheduled and that the client should retain a new legal

practitioner promptly;

(b) subject to the lawyer's right to a lien, deliver to or to the order of the client

all papers and property to which the client is entitled;

(c) subject to any applicable trust conditions, give the client all information that

may be required in connection with the case or matter;

(d) account for all funds of the client then held or previously dealt with,

including the refunding of any remuneration not earned during the

representation;

(e) promptly render an account for outstanding fees and disbursements; and

(f) co-operate with the successor legal practitioner so as to minimize expense

and avoid prejudice to the client; and

(g) comply with the applicable rules of court.

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If you are getting off the record for non-payment of fees, your obligation to

deliver your client’s papers and property is subject to the lawyer’s right of lien. Thus you

can refuse to deliver the file to the client’s new lawyer unless this would prejudice the

client’s interests. The Law Society cautions lawyers to have “due regard to the effect of

[the lien’s] enforcement upon the client’s position. Generally speaking, the lawyer should

not enforce the lien if to do so would prejudice materially the client’s position in any

uncompleted matter.”26 Of course refusing to deliver a file will in most cases prejudice

the client. Thus in practice it is often advisable to deliver the file, but to ask the new

counsel to protect your account by having the client agree to pay your reasonable fees

from any proceeds received.

26 Commentary to Rule 3.7-9 of the Rules of Professional Conduct.

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