This recent case illustrates:
- the importance of protecting solicitor and client privilege even when the lawyer wants to end that solicitor-and-client relationship through a motion to remove themselves as lawyer of record for a client; and
- the tremendous price a lawyer pays when they fail to keep solicitor-and-client communication private.
By way of background, when a lawyer files a pleading with the court on behalf of a client, they effectively go “on-record” as the client’s legal representative: they formally become the client’s “Lawyer of Record.” Generally speaking, a lawyer is not bound to remain on the record against their will, and they are free to ask the court for permission to withdraw their legal representation. The court typically grants the request for the asking, unless the request comes on the heels of a pending court proceeding, and great prejudice would result if the client were to be abandoned at that stage.
The motion material filed by the lawyer seeking to end their legal representation must provide an explanation for why the lawyer wishes to withdraw their services, and why it would not be prejudicial to their client if granted at the time of the request. The most common reason relied on by lawyers is the breakdown in the solicitor-and-client relationship or the non-payment of the lawyer’s legal account(s). Classic examples of a breakdown in the solicitor-and-client relationship would be a client who doesn’t communicate with the lawyer, a client who is caught lying to their lawyer, or a client that simply cannot get along with the lawyer or vice-versa (clash of ideas, clash of temperament, lack of confidence, etc).
When attempting to explain the breakdown of the relationship, however, lawyers must be very careful because in many instances the lawyer will be sharing details about communications between them and their client, all of which is typically protected by solicitor-and-client privilege. Indeed, the Rules of Civil Procedure, and more specifically subrules 15.04(1.2) and (1.3), make it abundantly clear that solicitor-and-client protected communication must be redacted from the motion material, and only an unredacted version is handed to the judge at the time of the motion. In this manner, the judge can be fully apprised of the underlying dynamic between the lawyer and their client to assess the merits of the motion, while at the same time preventing the public (including the opposing party) from seeing the private discussions between the lawyer and their client.
Imagine, if you will, that the dialogue between the lawyer and the client delved into the perceived value of the case, or the settlement or trial strategy to deploy, none of which should be in the hands of the client’s opponent, or the public at large.
Notwithstanding the practicality of the rules, and the ease upon which to deploy them, this recently released decision highlights the judge’s observation that many lawyers are failing to comply. This is actually quite shocking. The decision starts out this way:
“This is yet another so-called “off-record” motion where counsel feels that compliance with rules 15.04(1.2) and (1.3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the proper discharge of a lawyer’s fiduciary obligations to his or her client are optional.”
To make matters worse, this decision comes off the heels of another decision by the same judge, dealing with the exact same failures, in TSX Trust Company v Fiorentino, 2023 ONSC 2560 (“TSX”). The judge laments that the admonishment she raised in paragraph 8 of the TSX decision, to the effect that lawyers who fail to comply should face cost sanctions, was “clearly falling on deaf ears.”
The lawyer in this recent case, by failing to follow the requisite rules and protocols when attempting to remove himself as the Lawyer of Record for his client:
- Now has a reported decision that makes him look incompetent;
- Now has a potential errors and omissions claim because the judge concluded that the “information … disclosed…(in the publicly available motion record)…. is prejudicial to” his client;
- Now must pay costs personally, in the sum of $750.00, to his client; and
- Now must refile all the material again, in compliance with the rules.
Let’s hope that the message gets through.
Hitachi Capital Canada Corp. v 7109903 Canada Inc., 2023 ONSC 4619
https://www.canlii.org/en/on/onsc/doc/2023/2023onsc4619/2023onsc4619.pdf