Changing Representation During Litigation – Some Helpful tips!

 

Litigation is in many cases a lengthy process and sometimes a breakdown in the relationship between a party and their lawyer occurs. Clients sometimes conclude (for a variety of different reasons) that they need to change representation and find a new lawyer to conclude their matter. Parties are always free to change representation at any stage. However, there are advantages and disadvantages to making a change and in many cases timing is key. Some changes can cause negative consequences. Any change that significantly improves the lawyer client relationship is usually positive and supported, but changing lawyers is a big deal. The following will help explain in general terms some of the factors to consider before firing a lawyer. If you think that your lawyer may be considering withdrawing from your case, the following points will also be of some assistance. 

 

Clients are always free to change lawyers right up to the conclusion of the matter. This means that even if a lawyer has completed work on a file and money is owing to the lawyer, the client can nevertheless change lawyers. Clients can choose to change their lawyer for any reason. There really is no set criteria that must be met to discharge a lawyer from the retainer. 

 

The following is a list of common situations that may lead a client to change lawyers: 

 

• a conflict of interest arises; 

• personality conflicts;

• a change in location of the proceedings or parties;

• the need for help with other legal matters; 

• lack of communication and explanation of legal procedures; and

• a drastic difference in case direction.

 

Unlike clients, lawyers can usually only withdraw from cases in certain circumstances where the solicitor client relationship has been materially broken down. Lawyer’s are bound by certain Rules of Professional Conduct which are controlled by their Law Society (in Ontario, it is the Law Society of Upper Canada).  A lawyer may withdraw from a case if continuing would violate their rules of professional conduct. A lawyer may also withdraw from a case for medical reasons, for example, a mental impairment that would impair the lawyer from fully and competently representing the client. 

 

The following is a list of other acceptable reasons for a lawyer to withdraw from a case prior to or during litigation: 

 

• a conflict of interest arises; 

• the client approves the withdrawal;

• the client fails to cooperate;

• lack of communication from the client; 

• the client fails to fulfill their obligations including paying legal fees; 

• the client lies, commits a criminal infraction or acts in an otherwise unethical manner; 

• the case presents an unreasonable financial risk to the lawyer.

 

Whether the client or lawyer initiates the change, the lawyer is responsible for following all procedures for informing the court and seeking permission of the court for the change if necessary where the matter retained on is before the court. If the client has consented or is the one requesting the change, the court will usually automatically grant permission unless the client is a person with disability or a minor. There are special rules to deal with such situations. The court can refuse a lawyer’s request to withdraw from a case if it feels that the client would be unreasonably prejudiced. 

 

It is important to know that once the relationship between a client and lawyer has been terminated, the lawyer is no longer able to act or speak for the client. The lawyer does however have certain responsibilities to the client including the following: protecting the former client’s interest, complying with deadlines, protecting confidentiality and treating the client in a fair manner.

 

If a lawyer has begun work on a legal matter, one issue that must be addressed is compensating the lawyer for work completed. In most cases, where the lawyer’s conduct is not in issue and the lawyer acted properly, the lawyer would be entitled to reasonable compensation for the services they provided in accordance with the retainer agreement. In the case of a contingency fee matter, the former lawyer may be entitled to a percentage of the recovery on the case.

 

The work completed by a former lawyer may be transferred to the client or the client’s new representative. A change in representation does not change any deadlines or scheduled court dates for your matter, although adjournments are often granted for this reason. Once the parties, their lawyers and the court is informed of the change, all future correspondence will be sent to the new lawyer. Although most documents are required to be sent to the client or their new lawyer, internal firm documents remain the property of the former lawyer. For instance, internal memos and notes of the lawyer would remain with the lawyer.

 

Changing lawyers can be stressful if not done properly.  If you believe that a change in lawyer is necessary in your case, contact us for a free consultation at 613-315-4878, Ottawa Personal Injury Lawyers.