Withdrawal Is Mandatory Where a Client Persistently Breaches Court Orders

What should, and must, a lawyer do when their client persistently breaches court orders, either deliberately or recklessly, despite the firm advice of the lawyer that such breaches must cease?

While I am not qualified to comment on the US context, where such breaches by the federal government are allegedly occurring repeatedly and on a very large scale,[1] I would like to take this opportunity to reflect on what a lawyer in a Canadian jurisdiction should and must do in a parallel situation.

First, why does this lawyer have a problem, and what is that problem? A lawyer cannot “assist or permit” or “assist or encourage” the client to breach court orders. The Model Code of Professional Conduct of the Federation of Law Societies of Canada provides that “[w]hen acting as an advocate, a lawyer must not:… knowingly assist or permit a client to do anything that the lawyer considers to be dishonest or dishonourable.”[2] Likewise, it provides more generally that

“A lawyer must never:

a) knowingly assist in or encourage any dishonesty, fraud, crime, or illegal conduct.
b) do or omit to do anything that the lawyer ought to know assists in or encourages any dishonesty, fraud, crime, or illegal conduct by a client or others, or
c) instruct a client or others on how to violate the law and avoid punishment.”[3]

I assume that the lawyer is actively counselling against such breaches, and so they are not assisting or permitting or encouraging the client to breach court orders. (If the lawyer is permitting or assisting, the situation becomes straightforward professional misconduct.[4]) If the client is breaching such orders despite the firm and honest insistence of the lawyer that such breaches stop, then what?

At first glance, the lawyer could certainly withdraw from the matter under the rule on discretionary withdrawal. That rule provides that “[i]f there has been a serious loss of confidence between the lawyer and the client, the lawyer may withdraw.”[5] The commentary to the rule provides some examples of such a loss of confidence, including “if a lawyer is deceived by his client, the client refuses to accept and act upon the lawyer’s advice on a significant point, a client is persistently unreasonable or uncooperative in a material respect”.[6] A client who persistently breaches court orders, whether unintentionally or recklessly, despite the lawyer firmly warning them not to do so, would certainly appear to create a serious loss of confidence between the lawyer and the client. This loss of confidence would be even more severe if the client is deceiving the lawyer about whether such breaches are indeed occurring. I say persistently because a first breach may be inadvertent or it may occur because the client does not appreciate the seriousness of such a breach. In either situation, the lawyer would inform the client of their responsibilities to the court and insist the breach not be repeated.

However, if the client is an organization, a lawyer who simply withdrew in that situation would actually have breached their professional obligations. Where the client is an organization, the rule on reporting up within the organizational client then applies. [7] The lawyer “knows that the organization has acted, is acting or intends to act dishonestly, fraudulently, criminally, or illegally”, because breaching court orders is illegal if not dishonest, and so the lawyer must progressively report up to dissuade the client from breaching court orders.[8] If the client is not dissuaded, the lawyer must withdraw.[9] If the lawyer withdraws before reporting up, that lawyer is depriving the organizational client of the opportunity to make an informed decision.

This mandatory withdrawal – after unsuccessfully reporting up in the organizational client – is not explicitly mentioned in the rule on mandatory withdrawal. That rule provides that

“A lawyer must withdraw if:

a) discharged by a client;
b) a client persists in instructing the lawyer to act contrary to professional ethics; or
c) the lawyer is not competent to continue to handle a matter.”[10]

Here the client is not instructing the lawyer to act contrary to professional ethics. Instead, they are merely ignoring their lawyer’s firm advice to cease the breaches. Of course, if the client persists in instructing the lawyer to conceal the breaches from the court, thus breaching their duty of candour to the court,[11] this rule would clearly apply. Otherwise, however, this rule is not engaged.

As Alice Woolley and Amy Salyzyn explain, these three scenarios in the rule on mandatory withdrawal are not exhaustive of the situations in which withdrawal is mandatory.[12] In addition to the situations covered by the rule on reporting up within the organizational client, withdrawal may be necessary where a conflict of interest arises.[13]

Moreover, I have argued elsewhere, building on Woolley’s work,[14] that there will be a point where a client’s course of action is so repugnant to the individual lawyer that they must withdraw – whether this is because they cannot provide competent service or they are in a conflict of interest.[15] I would hope that persistent breaches of court orders, whether deliberate or reckless, would constitute repugnance for at least some lawyers. Indeed, such breaches are all the more serious and all the more repugnant where the client is the government.

Given the seriousness of a client persistently breaching court orders, and the importance of signalling clearly to the profession and the public that lawyers cannot continue to act in that situation, it is worthwhile to consider adding a client’s persistent breach of court orders to the rule on mandatory withdrawal. (If such a change has previously been considered, which is quite possible, then it is worth reconsidering.) While this addition would not change lawyers’ obligations in such a situation, it would make those obligations crystal clear. In particular, it would make explicit that withdrawal is mandatory, not merely discretionary.

Nonetheless, despite the client’s instructions and actions, the other rules on withdrawal still apply. These rules provide that “[a] lawyer must not withdraw from representation of a client except for good cause and on reasonable notice to the client” and that a withdrawing lawyer “must try to minimize expense and avoid prejudice to the client and must do all that can reasonably be done to facilitate the orderly transfer of the matter to the successor lawyer.”[16]

More specifically, these rules also require the withdrawing lawyer to “co-operate with the successor lawyer in the transfer of the file so as to minimize expense and avoid prejudice to the client”.[17]

With great respect, the conglomeration of all these rules does not allow the lawyer to inform the court that the breaches have occurred despite their admonishments. The lawyer owes the court candour as to the fact that the breaches have occurred.[18] The admonishments about the breaches, however necessary, are subject to confidentiality and privilege that would displace the duty of candour to the court. If asked, the lawyer would be wise to simply respond by informing the court that they are withdrawing for “ethical reasons”.[19] To do otherwise may be understandable but is not permissible.

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[1] See e.g. Brandi Buchman, “DOJ Lawyer Who Melted Down In Court Offered Terrifying Peek Into ‘Broken System’” Huffington Post (5 February 2026), online: <https://www.huffpost.com/entry/doj-lawyer-who-melted-down-in-court-gave-a-terrifying-peek-into-the-system_n_6984ec70e4b04d5037ef4e99>.

[2] Federation of Law Societies of Canada, Model Code of Professional Conduct (Ottawa: FLSC, 2009, last amended April 2024) [FLSC Mode Code], r 5.1-2(b) [FLSC Model Code], online: <https://flsc.ca/wp-content/uploads/2024/11/2024-Model-Code-of-Professional-Conduct.pdf>.

[3] FLSC Model Code, supra note 2, r 3.2-7.

[4] See e.g. Sussman, Re, 1995 CanLII 537 (ON LST); Macgregor (Re), 2018 LSBC 39; Merchant v Law Society of Saskatchewan, 2014 SKCA 56.

[5] FLSC Model Code, supra note 2, r 3.7-2.

[6] FLSC Model Code, supra note 2, r 3.7-2, commentary 1.

[7] FLSC Model Code, supra note 2, r 3.2-8.

[8] Ibid.

[9] Ibid.

[10] FLSC Model Code, supra note 2, r 3.7-7.

[11] FLSC Model Code, supra note 2, r 5.1-1: “When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy and respect.”

[12] Alice Woolley & Amy Salyzyn, Understanding Lawyers’ Ethics in Canada, 3d ed (Toronto: LexisNexis Canada, 2023), § 3.08 at 143-144. (Now Justice Woolley of the Court of Appeal for Alberta.)

[13] Ibid; FLSC Model Code, supra note 2, r 3.2-1 [emphasis added]: “A lawyer must not act or continue to act for a client where there is a conflict of interest, except as permitted under this Code.”

[14] I say Woolley here because, at that time, Amy Salyzyn had not yet joined Understanding Legal Ethics in Canada as a co-author.

[15] Andrew Flavelle Martin, “Loyalty, Conscience, and Withdrawal: Are Government Lawyers Different?” (2023) 46:3 Manitoba LJ 1 at 7-8.

[16] FLSC Model Code, supra note 2, rr 3.7-1, 3.7-8.

[17] FLSC Model Code, supra note 2, r 3.7-9(f).

[18] FLSC Model Code, supra note 2, r 5.1-1: “When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy and respect.”

[19] R v Cunningham, 2010 SCC 10 at para 48.