Legal Ease, May 29

When you have a lawyer, that lawyer has a duty to protect your interests as best they can.

But your lawyer is your agent, and if you do not feel satisfied with what your lawyer is doing, you can always fire your lawyer.

Similarly, in some but not all circumstances, your lawyer can quit.

Generally, the right to fire your lawyer is unfettered, meaning, you can fire your lawyer at any time and for any reason.

That said, if you fire your lawyer for a tactical reason—say, to try to get an adjournment of a case—the court will let you, but then will make you proceed with the case with no lawyer.

There is a right to consult a lawyer on arrest or detention, but no general right to have a lawyer represent you.

But if you fire your lawyer for some other reason—such as you think they are not doing a very good job—usually the court will delay further proceedings for a short period to allow you to get a new lawyer.

And that’s fair, because you do need to have confidence in your lawyer and if you have lost that confidence, you should be allowed a little time to get someone new who you do have confidence in.

So firing a lawyer is fairly straightforward legally. If the lawyer wants to quit, however, it is somewhat more complicated.

A lawyer is not allowed to cause prejudice by leaving a case. That means prejudice, not only to the client, but to the court, the other side and the process in general.

The Supreme Court of Canada has ruled a lawyer cannot withdraw from a case where “withdrawal would harm the administration of justice.”

Nevertheless, sometimes a lawyer is required to stop acting. If, for example, the lawyer has a conflict of interest, the lawyer usually cannot act.

In some rare cases a conflict of interest can be waived, but usually if the lawyer has some conflicting duty or interest that lawyer cannot act. A lawyer’s duty must be to the lawyer’s client and no one else.

Another case where the lawyer must quit is when the client asks the lawyer to do something improper or unethical. That is pretty rare.

A different situation arises where the lawyer is not being paid by the client.

Generally, a lawyer is not obliged to work for free, and if a lawyer is not being paid, the lawyer can ask the court to allow them to quit.

Normally, the court does allow the lawyer to quit, but if there is a trial or other matter imminent, the lawyer may be required to stay on in the interests of justice.

The lawyer should have collected their fee earlier—it’s not a great solution, but it’s not unfair to make lawyers protect themselves.

Obviously if the lawyer gets too sick to work, the lawyer can quit. Similarly, if a lawyer is just not capable of acting, perhaps because of a lack of experience or some lack of training, the lawyer must quit.

As you can see, a lawyer quitting is more complex than a lawyer being fired!

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.