Can retainers include lawyers’ authority to withdraw from a family law case?

Can family lawyers include a provision in their retainer agreements giving themselves discretion to withdraw from the case for non-payment of legal fees?

That was one of the issues in a Law Society Tribunal case in which the panel made findings of professional misconduct against a Whitby, Ont., lawyer who acted for a client in her matrimonial dispute. At the very least, a lawyer must advise the client about obtaining independent legal advice, the tribunal found.

In this case, the retainer included a provision noting that the lawyer, Matys Rapoport, “in his discretion may withdraw from acting on my behalf” for reasons including non-payment of an account. “

“I expressly give Max Rapoport permission to sign a notice of change in representation on my behalf should he deem same necessary,” stated the retainer agreement signed by the client in 2010.

With the client not having paid accounts totalling $23,027.52 by September 2011, Rapoport began expressing concern about the outstanding amounts and told her that fall that he’d no longer act for her unless she began making payments, according to the tribunal’s July 7 decision.

In November 2011, the lawyer sent a letter saying he’d continue to act if she signed two consents to judgment. She signed them but with the issues over payment continuing, he sent another letter in March 2012 saying he’d remove himself as solicitor of record unless he received $34,000 towards the outstanding account within 10 days, according decision written by panel chairwoman Susan Opler.

Rapoport ended up filing a notice of a change in representation on the client’s behalf, Opler noted. The client responded with an e-mail calling the lawyer’s withdrawal as “unfair” and “unfortunate.”

For his part, Rapoport noted his reliance on the retainer agreement as a “precedent form retainer agreement that several counsel (unidentified) rely upon in his jurisdiction,” wrote Opler.

But in considering whether his actions were acceptable, Opler compared them to another case in which a family lawyer’s retainer agreement contemplated a client giving up his right to an assessment under the Solicitors Act.

The client in that case had essentially contracted out of the Solicitors Act, she found, noting Rapoport had achieved a similar result by obtaining the consents to judgment and serving a notice of a change in representation.

“This latter appropriation of the client’s right to terminate the relationship ‘at will’ meant the Lawyer effectively bypassed the procedural safeguards that apply to counsel of record established in the Family Law Court Rules, which protect the client and safeguard the process. In our view, both the assessment process and the right to end the solicitor client relationship ‘at will’ . . . are consumer protection provisions designed for the protection of the public which should not be appropriated by the Lawyer,” she wrote.

Opler highligted the power imbalance at issue and the importance of advising on the need for independent legal advice “as a lawyer treads closer and closer to the line of encroaching on existing client rights in favour of strengthening his own economic position.”

The decision continues: “Suffice to say that in this case, where no acknowledgment of the inherent conflict is included in the agreement nor is there guidance given to the client to seek independent legal advice, we find that the Lawyer was in an impermissible conflict of interest when he advised the client to hand over to him all control over service of a Notice of Change in Representation — a right that properly belonged to her pursuant to Rule 4(10).”

While the panel made the misconduct findings, it must still reconvene to consider the penalty.

Rapoport’s counsel Ted Spong declined to comment as the case is still before the tribunal.

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