New Rules Regarding a Motion For Removal as Lawyer of Record
Effective January 1, 2019, new rules apply to a motion by a lawyer for removal as lawyer of record.
Under Rule 15.04 of the Rules of Civil Procedure, a lawyer may bring a motion to have him or herself removed as lawyer of record. The old Rule was silent on whether other parties to the litigation, other than the client, had to be served. Under the recent amendments, it is now clear that such a motion must be brought on notice to every other party. However, a motion record need not be served on every other party: just the notice of motion.
The new Rule goes on to provide that the lawyer making the motion shall ensure that any information in the notice of motion or motion record that is subject to solicitor-client privilege, or that may be prejudicial to the client, including the grounds for the motion, is redacted or omitted from the notice of motion that is served on the other parties, and from the motion record that is filed with the court. At the hearing, the lawyer is to provide the presiding judge with a complete and unredacted version of the notice of motion and motion record. This is to be returned to the lawyer after the hearing, and does not form part of the court file.
Under the new Rule, it is likely that the court will require greater detail as to the precise reason for the removal, rather than a general statement such as “breakdown in the solicitor-client relationship”. The new Rule allows the lawyer to set out the precise reason for the removal, without disclosing those reasons, at least to the other parties to the litigation.
A question, however, remains as to whether the lawyer can disclose solicitor-client communications, if only to the judge. Arguably, information subject to solicitor-client privilege should not be divulged to a judge, even in the context of a motion by a lawyer for removal
The amendment was the subject of comment in the decision of Solutions Construction Management v. 1971538 Ontario Inc., 2019 ONSC 503 (CanLII). There, the plaintiff brought a motion for summary judgment. The defendant’s lawyer had recently brought a motion to remove him or herself as lawyer of record, and the defendant therefore sought an adjournment. The adjournment was granted. The plaintiff had been served with the defendant’s lawyer’s motion. However, they did not attend at that motion or advise the court of the pending motion for summary judgment. The summary judgment judge, in adjourning the motion, stated that:
This matter is a cautionary tale as to the significance of the recent amendment to r. 15.04 of the Rules of Civil Procedure. It may, in some circumstances, be necessary for litigants to respond to or, at a minimum, attend on the return of a motion by an opposing party’s lawyer for an order for removal from the record. That step may be necessary to ensure that the court is (a) fully informed of the status of the litigation, and (b) given an opportunity to consider the potential prejudice to other parties if counsel for one party is removed as lawyer of record.
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