September 5, 2017 |

NSW Will dispute lawyers must comply with Uniform Rules.

A solicitor must give a client at least 28 days' notice they intend to withdraw from a case if a hearing date has been fixed. If they have not given the required notice, they need the court's permission to cease acting.

In a recent civil case Justice Ashley Black said the rule recognised that a change in solicitor shortly before a hearing may cause "significant prejudice to the client" and the community also had an interest in the timely resolution of proceedings.

Had the application to withdraw from the case been made in "reasonable time" it was "very likely" he would have allowed the solicitor to do so, Justice Black said, but it was "simply made too late".

He rejected the solicitor’s submission he would be forced to act without payment and said there was "no evidence" the solicitor did not have property that could be used to secure the payment of fees.

Justice Black said that while it might be difficult to find a barrister to appear in the case, the solicitors "well-polished skills in the courtroom" meant the client would not be at a disadvantage.


Withdrawal of solicitor form a case

 A solicitor who ceases to act for a party in any proceedings may file notice of the change and serve the notice on the parties. 

Except by leave of the court, a solicitor may not file or serve notice of the change unless he or she has filed and served on the client a notice of intention to file and serve the notice of change: 

in the case of proceedings for which a date for trial has been fixed, at least 28 days before doing so, or 

 in any other case, at least 7 days before doing so. 

 Unless notice of the change is filed with the leave of the court, a solicitor filing such a notice must include in the notice a statement as to the date on which service of the notice of intention required by subrule (2) was effected. 

A solicitor may serve a notice of change or notice of intention under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.

The whole idea of a solicitor being required to give plenty of notice to a client is twofold.

Firstly, to give the client ample time to instruct another legal team especially before a trial or hearing. A ‘trial’ usually refers to criminal proceedings. A ‘hearing’ in reference to civil proceedings such as wills and estates and probate administration.

 Secondly, to ensure the there is no disruption of the court system. When a hearing date is set it means all legal personnel both in the court itself and the opposition legal team have prepared themselves and put aside all other work for that day or week whatever the estimated time for the hearing.

 So, you could not have a system where a solicitor could simply arrive at court a few early and tell everyone he or she is no longer representing the client. The court will not proceed with a hearing unless the client is given ample time to prepare his or her legal team. Accordingly, the case would have to adjourned costing all concerned (including the public) out of pocket.

Eric Butler

ALPMA Law Society of NSW STEP Law Society of New South Wales Queensland Law Society Law Institute Victoria

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