Withdrawing from a criminal case
Withdrawing from a criminal case practice note – 4 November 2008
1. Introduction
1.1 Who should read this practice note?
Solicitors practising in criminal law.
1.2 What is the issue?
Issues arise when you are considering either withdrawing from representing a defendant, or taking on a transferred case, close to or in the course of the trial.
Once the criminal trial process is engaged, you owe professional obligations both to the defendant/s for whom you act, but also to the court.
This practice note gives advice on these issues.
For contextual information see:
1.3 Professional conduct
The following sections of the Solicitors’ Code of Conduct 2007 are relevant to this issue:
- Rule 2.01(2): Client relations – taking on clients
- Rule 3: Conflict of interest
- Rule 4: Confidentiality and disclosure
- Rule 11: Litigation and advocacy
1.4 Legal and other requirements
1.5 Status of this advice
Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.
Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.
For queries or comments on this practice note contact the Law Society's Practice Advice Service.
1.6 Terminology in this advice
Must – a specific requirement in the Solicitor's Code of Conduct or legislation. You must comply, unless there specific exemptions or defences provided for in the code of conduct or relevant legislation.
Should – good practice for most situations in the Law Society's view. If you do not follow this, you must be able to justify to oversight bodies why this is appropriate, either for your practice, or in the particular retainer.
May – a non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual practice, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.
1.7 More information
1.7.1 Practice Advice Service
The Law Society provides support to solicitors on a wide range of areas of legal practice. The service is staffed by solicitors and can be contacted on 0870 606 2522 from 09.00 to 17.00 on weekdays.
www.lawsociety.org.uk/practiceadvice
1.7.2 Practice note: Criminal Procedure Rules 2005
The Law Society has produced a practice note to help you understand your duties under the Criminal Procedure Rules 2005.
1.8 Acknowledgements
The Law Society is grateful to Christopher Murray of Kingsley Napley, former Chair of the Criminal Law Committee, for his assistance with the Law Society’s intervention, at the invitation of the Court of Appeal, in R v Ulcay, and in subsequently drafting this practice note. It is also grateful to other members of the Committee for their input.
2 Reasons to withdraw
You may withdraw from acting for a client in a criminal case, whether during the trial itself or during preparation for trial, where there are compelling reasons to do so.
2.1 Who determines whether there are compelling reasons?
The decision about whether compelling reasons to withdraw exist lies with you, not the court.
The Court in R v Ulcay agreed with the observations of Rose LJ in R v G and B when he said, at paragraph 14 of that case: ‘We think it right, both in principle and pragmatically, that whether a solicitor or barrister can properly continue to act is a matter for him or her not the court, although of course the court can properly make observations on the matter.’
In R v Ulcay Judge LJ stated, at paragraph 30: ‘The principle...remains clear. The court cannot oblige the lawyer to continue to act when he has made a professional judgement that he is obliged, for compelling reasons, to withdraw from the case’.
2.2 What are ‘compelling reasons’
You must withdraw from a case if you conclude that you are professionally embarrassed by continuing to act, in accordance with the Solicitors’ Code of Conduct, and the professional obligations you owe to your client, and/or to the court.
This is to avoid breaching the code, and also prevent risk of punishment by the court, whether through a wasted costs order or, in more serious cases, prosecution for an offence against public justice.
2.3 Examples of compelling reasons
2.3.1 Obligations to clients
Where you are acting for two defendants a conflict of interest may arise.
You must withdraw from at least one client where this has occurred. Continuing to act would be in breach of Rule 3 of the Solicitors’ Code of Conduct.
You must withdraw from both clients if, by continuing to act for the remaining client, you would breach your duty of confidentiality to your former client (Rule 4).
2.3.2 Obligations to the court
You must withdraw from a case if a client changes instructions in such a manner that for you to continue would involve you misleading the court. Continuing to act would breach Rule 11.
3. Withdrawal when the client wishes to change solicitor
The retainer is a contractual relationship and subject therefore to legal considerations. In principle, a client can end the retainer with you at any time and for any reason. However, when a client is a defendant in criminal proceedings, different practical considerations apply to the determination of the retainer and withdrawal depending on client funding.
3.1 Where the client is privately funded
You must withdraw from a case if the defendant is privately funded and they terminate the retainer. You have no further authority to represent them.
3.2 Where the client is publicly funded
If the defendant is funded by legal aid, Regulation 16 of the Criminal Defence Service (General) (No 2) Regulations governs any application for a change of representation, and the court has the power to grant or refuse such an application.
The grounds for change are set out in Regulation 16(2) (a) (i)–(iv). You must provide details of either:
- the nature of the duty which you consider obliges you to withdraw
- the nature of the breakdown in your relationship with your client.
You must, however, take legal professional privilege (LPP) into consideration as this may limit the information that you can give without your client’s consent.
4. What should you tell the court when withdrawing?
You must inform the court of the reasons for your withdrawal, by providing enough explanation to enable the judge to decide how to proceed. However, in doing so you must not breach legal professional privilege (LPP).
This may mean that the court is not fully informed about the reasons for withdrawal or the nature of the breakdown between you and your client, but that cannot be avoided. Although the court can properly comment, the making of this decision rests solely with you.
For more information about LPP see the practice note on Criminal Procedure Rules.
5. Making an informed decision to accept a transferred case
You may decide whether or not to accept a retainer from a new client, but once you have accepted the retainer you may not later withdraw for reasons of practical difficulty which may result from your obligation to comply with court orders.
You must therefore be satisfied that you are able to comply with any orders already made by the court, including the length of any adjournment, before accepting instructions to act.
5.1 Replacing a solicitor at short notice
When considering taking over a case from another solicitor at short notice, you should make full inquiries of the court, asking to be given all the relevant information it can provide.
You should do this before accepting the case to ensure that you can comply with the court’s requirements.
5.2 Difficulties arising from compliance with an adjournment order
If the defendant has changed their legal team close to, or during, a trial it is the responsibility of the trial judge to decide whether to adjourn the trial to accommodate new legal team, and for how long. Once you have accepted the retainer and assumed conduct of criminal litigation you have a professional obligation, as an officer of the court, to comply with these orders and to do your best for the client under those circumstances.
In R v Ulcay the Court considered that a solicitor in such circumstances owes a duty to the court that requires them to ‘soldier on’. If the trial judge’s decision produces injustice or deprives the defendant of a fair trail, the remedy is to be sought in the Court of Appeal. See paragraphs 44 and 38 of the judgement.
5.3 How does compliance affect your professional obligation?
Complying with a court order which makes it impossible or difficult to achieve your normal standard of competence in looking after your client’s interests does not put you in breach of the Solicitors' Code of Conduct, nor are you acting improperly or negligently.