Index

July 21, 2020

Ceasing to Act


June 29, 2020

Writing Skills


June 29, 2020

Keeping Up With the Law


June 22, 2020

Assets as a Test for Security for Costs


June 19, 2020

What is This Case About?


June 11, 2020

Cross-Examining Child Witnesses


May 20 , 2020

Formal Offers


May 13 , 2020

Vexatious or Self-Represented Litigants


January 7, 2020

G.S.T. and Costs


December 20 , 2019

Electronically Navigating the
Handbook


October 7 , 2019

Questioning is a Bad Word


July 29 , 2019

Dismissal for Delay


May 7 , 2019

Rule 4.31 Fallacies


March 18 , 2019

More Dangers in Oral Fee Agreements


February 11 , 2019

Weir-Jones Decisions


January 9 , 2019

Discouraging Settlements


November 30, 2018

European Court Helps You Twice?


November 23 , 2018

Courts Overruling Tribunals


November 16 , 2018

New Evidence on Appeal


October 30 , 2018

Schedule C's Role


July 17 , 2018

Loopholes in Enforcing Settlements


May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

 

Welcome

Côté’s Commentaries

© 2016-2020 J.E. Côté

CEASING TO ACT

In a civil suit, a lawyer for one party usually can stop acting without anyone’s permission, by giving sufficient notice to the client. (At times, resigning is too harmful to be allowed, e.g. just before a scheduled trial.) And the client can usually fire the lawyer too.

More formalities are very useful. The lawyer should have proof of what has happened and when, and proof of any agreement. Acting in a lawsuit gives the lawyer duties to the court, and sometimes some duties to opposing parties. The lawyer so acting is usually on the records of the court. That shows that the lawyer owes duties to the court. He or she is usually the (former) client’s address for service, so changing that is very important.

So a lawyer always needs several reliable ways to contact his or her client, and to prove that the communication arrived. A client who can be reached only one way, does not reveal locations, or who often cannot be reached promptly, raises suspicion. Given email and cellphones, there is no excuse for that. (How to reach all other parties in the lawsuit is also important.)

A lawyer who wishes to cease to act (by a “notice of withdrawal”) should follow all the steps in R. 2.29. After that, ten more days must elapse, to make the withdrawal fully effective.

Sometimes the lawyer wishes to stop acting because the client has found a new lawyer. The usual and best way is for the new lawyer to file and serve on all concerned a notice naming the new lawyer and the new address for service. Then the former lawyer need do no more. Such a notice by the new lawyer operates at once with no waiting period. See Pearson v. Pearson 2020 ABCA 260 (July 7), ¶’s 37-38. (In theory the client could instead serve such a notice, but that is not very common.)

Sometimes the new lawyer is slow to file a notice that he or she is now the solicitor. Or apparently the new notice of solicitor was not properly served on everyone.

Maybe neither paying either lawyer nor custody of the file should impede any of that; but sometimes they do. A lawyer is understandably reluctant to go on the record without assurance of payment. And maybe until he or she can get the file. The former lawyer may find himself hung up between heaven and earth. If service on the (former) client could be proved, the former lawyer should file, serve, and prove service of a formal notice of withdrawal. The situation should not last much longer than ten more days. But if provable service is not completely possible, the outgoing lawyer has a dilemma. He or she may need to bring an application. The new lawyer is not held back by such considerations (Pearson case at ¶ 39). The client who is switching lawyers cannot hold hostage by non-payment the opposing party (ibid).

– Hon. J.E. Côté

 

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.