LAWPRO defence counsel have reported to us they have seen an increase in motions to be removed as lawyers of record and that these motions are not always going as expected or desired. In some cases motion materials do not have the required evidence, providing either too little information, or too much information (i.e., confidential or privileged information is being disclosed). Lawyers are also saying that decisions on these motions have not always been consistent. Follow these steps to ensure you get the desired result by placing the required information before the court.
In Ontario, Rule 15.04 of the Rules of Civil Procedure sets out the steps that must be taken to bring a motion for removal as the lawyer of record. The materials should contain the client’s contact information and be properly served. In addition to the requirements under Rule 15.04, lawyers should include in an affidavit evidence of the status of the action (e.g., have discoveries taken place, has the action been set down, are there upcoming motions) and the reason for removal. Typical reasons for removal include an inability to obtain instructions from the client, a breakdown in the relationship, and the client failing to pay the lawyer’s fees.
As with any affidavit on a motion, it should be sworn by a person other than the lawyer arguing the motion. Avoid revealing confidential and privileged information. If further evidence about the solicitor-client relationship is required, consider a sealing order to keep the reasons for the breakdown in the relationship confidential. Remember your duty of loyalty to the client. Do not disclose information that can harm your client’s case.
Rule 15.04(1) allows a lawyer to move, on notice to his or her client, for an order removing him or her as lawyer of record [Rule 15.04(1)].
The manner of service is set out in Rules 15.04(2) and (3). Both the notice of motion for the removal of a lawyer from the record and service of the order shall be made on the client, personally or by an alternative to personal service under rule 16.03; or by mailing a copy to the client at the client’s last known address and, another address, if any, where the lawyer believes the copy is likely to come to the client’s attention. [Rule 15.04(2)]
Where the client is under disability, the notice of motion and the order shall also be served on the client’s litigation guardian and, if the litigation guardian is not the Children’s Lawyer or the Public Guardian and Trustee, on the Children’s Lawyer, if the party is a minor; or on the Public Guardian and Trustee, in any other case. [Rule 15.04(3)]
Rule 15.04(4) sets out the contact information that must be included in the order, namely, the client’s last known address, or the address for service if different; another address, if any, where the lawyer believes the copy is likely to come to the client’s attention; the client’s telephone number and fax number, if any, unless the court orders otherwise; if the client is a corporation, the text of subrules (6) and (7); and if the client is not a corporation, the text of subrules (8) and (9).
Proof of service of the order must be filed forthwith after the removal order is served on the client. [Rule 15.04(5)] There is no requirement that the motion be served on the other parties to the action, and indeed it may be best not to serve them as doing so may divulge harmful confidential information.
Rule 15.04(6) and (7) provide steps to follow where the client is a corporation. The corporate client shall, within 30 days after being served with the order removing the lawyer from the record, appoint a new lawyer of record by serving a notice under subrule 15.03(2); or obtain and serve an order under subrule 15.01(2) granting it leave to be represented by a person other than a lawyer. If the corporation fails to comply with subrule (6), the court may dismiss its proceeding or strike out its defence. [Rule 15.04(7)]
Under Rule 15.04(8), a client who is not a corporation shall, within 30 days after being served with the order removing the lawyer from the record, appoint a new lawyer of record by serving a notice under subrule 15.03 (2); or serve a notice of intention to act in person under subrule 15.03(3). If the client fails to comply with subrule (8), the court may dismiss the client’s proceeding or strike out his or her defence. [Rule 15.04(9)]
Remember, your duties to your client in an action do not cease until you obtain an order that removes you as lawyer of record, or your client serves you a Notice of Change of Lawyer, Notice of Appointment of Lawyer, or a Notice of Intention to Act in Person. You should continue to move the action forward as necessary until you are removed. Further, some duties survive the termination of the retainer (e.g., confidentiality and conflicts of interest).
Bringing a motion for removal as lawyer of record can be a sensitive time for the client. Care should be taken to communicate with the client the reasons for the motion. Confidentiality should be maintained as far as possible. And, of course, a real attempt to obtain consent on the motion can ease tempers.