Your lawyer can’t ‘sack’ you without your consent

‘Difficult’ clients sometimes find themselves without a lawyer after they reject the lawyer’s advice or are impolite to the lawyer, or if they want to progress proceedings in a way that the lawyer disagrees with.

In New Zealand (unlike several overseas jurisdictions), lawyers are not allowed to cease acting for a client for that reason.

Yet I have had several clients over the years whose lawyers have ceased to act for them without ‘good cause’, sometimes leaving them in the lurch at a crucial stage in Family Court proceedings.

This blog is intended to clarify the situation, both for clients and for lawyers. It is drawn from rule 4.2 of the Conduct and Client Care Rules 2008.

A client can easily end the lawyer-client relationship

A client may terminate the retainer (i.e. sack the lawyer) at their own discretion, unless they are legally aided (and want to change to a different lawyer) or have not paid their current lawyer.

If the client is legally aided, the Legal Aid Service has to agree to transfer the legal-aid grant to the new lawyer. Approval is not automatic or unlimited.  Transfers cost money because the new lawyer has to be paid to familiarise themselves with the file and the client, and also to prepare paperwork to notify the court and other parties of the change of representation.  Legal Aid also want clients to listen to their lawyers’ advice, not shop around to try to find a lawyer who tells them what they want to hear.  (A private client can spend their own money on hopeless cases if they want to. That’s different from spending the taxpayer’s money.)

If the client has not paid their current lawyer, the current lawyer is not obliged to release the client’s file, although they are still required to provide access to the client’s ‘personal information’ under the Privacy Act.

A lawyer may NOT easily end the lawyer-client relationship

A lawyer may terminate the retainer (i.e. sack the client) if the client agrees. No client should agree unless they already have another lawyer in place, especially when there are current court proceedings or other urgent issues.

If the client does not agree, a lawyer may only terminate the retainer (a) for ‘good cause’; and (b) after giving reasonable notice to the client, including specifying the grounds for intended termination.

If the lawyer does terminate the retainer, the lawyer must also give reasonable help to the client to find a new lawyer.

In litigation matters (court proceedings), ‘good cause’ does not include ‘the adoption by the client against the advice of the lawyer of a course of action that the lawyer believes is highly imprudent and may be inconsistent with the lawyer’s fundamental obligations’.  It is the lawyer’s job to provide clear advice. The client then makes the decision.

The lawyer is required to act on the client’s instructions and do her best to achieve the outcome sought by the client. (A prudent lawyer will ensure this is fully documented.)

If the client is legally aided, the lawyer is  required to inform Legal Aid of changes in the prospects of success or of actions by the client that undermine their own case; and legal aid may be withdrawn. In that case the lawyer may then have grounds to terminate the retainer unless the client is able to pay the lawyer’s fee privately.)

However, if a client’s instructions require the lawyer to breach any professional obligation, and if the client will not withdraw those instructions, the lawyer may terminate the retainer.

If a client cannot or will not pay the lawyer’s fee, according to what has been agreed, or (if there was no agreement) on a reasonable basis, then the lawyer may terminate the retainer.  The lawyer first has to give the client a chance to rectify the problem. The lawyer also has to take due regard of the lawyer’s fiduciary duties to the client (such as – for instance – ensuring the client is informed of the next steps and due dates in the proceeding) and give the client enough notice to be able to arrange alternative representation.

If a client misleads or deceives the lawyer in something that matters to the case, the lawyer may cease to act.

If a client ‘fails to provide instructions in a sufficiently timely way,’ the lawyer may cease to act. The phrase ‘failure to provide instructions’ is ambiguous. It is traditionally used orally to tell the court the client has not paid counsel’s fee. However, its literal meaning is relevant here: a lawyer may terminate the retainer if the client does not provide adequate information or decisions when needed. Again, the lawyer should first give the client an opportunity to rectify the situation.

In itself, being too busy (having an excessive workload) is not good cause to terminate a retainer. The lawyer ought not to have accepted the instructions in the first place (rule 4.1). The client – or taxpayer through legal aid – ought not to have to pay twice because the lawyer is too busy. It may be possible to negotiate an agreed transition if the lawyer refunds fees already paid or agrees to pay the new lawyer’s fees for becoming familiar with the case. The client is not obliged to agree to this.

The rules make it clear that ‘personal attributes of the client’ are not good cause to terminate the retainer. Nor are ‘the merits of the matter upon which the lawyer is consulted’.

The fact a client is difficult to communicate with, obtuse, or even obnoxious is regarded as a normal incident of professional practice and not grounds for ceasing to act.’  (D Webb, Ethics, professional responsibility and the lawyer, 2nd ed, [5.8.2], from McDonald v FAI (NZ) General Insurance Co Ltd [1999] 1 NZLR 583 (overturned on other grounds by the Privy Council).

The list in rule 4.2 of what constitutes ‘good cause’ is not exhaustive.

Other grounds in case law include:

  • continuing engagement in the matter is likely to have a seriously adverse effect upon the lawyer’s health (Forney v Bushe (1954) 104 LJ 604, cit G E Dal Pont, Lawyers’ Professional Responsibility, 3rd ed, [3.160]);
  • the client or the lawyer has died or become insane (Dal Pont, [3.165], referring to Whitehead v Lord (1852) 7 Ex 691; 155 ER 1126 (death of client enabled the solicitor to recover his costs before the action was terminated), and McVey v Denis (1984) 55 ALR 201 (CA(NSW)) at 204 (death of client).

 

Cheryl Simes

23 June 2018

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