13. Completion or termination of engagement

13.1 A solicitor with designated responsibility for a client's matter must ensure completion of the legal services for that matter UNLESS:

13.1.1.   the client has otherwise agreed;

13.1.2.   the law practice is discharged from the engagement by the client; 

13.1.3.  the law practice terminates the engagement for just cause and on reasonable notice; or

13.1.4.  the engagement comes to an end by operation of law.

 13.2. Where a client is required to stand trial for a serious criminal offence, the client's failure to make satisfactory arrangements for the payment of costs will not normally justify termination of the engagement UNLESS the solicitor or law practice has: 

13.2.1.   served written notice on the client of the solicitor's intention, a reasonable time before the date appointed for commencement of the trial or the commencement of the sittings of the court in which the trial is listed, providing the client at least seven (7) days to make satisfactory arrangements for payment of the solicitor's cost; and

13.2.2.   given appropriate notice to the registrar of the court in which the trial is listed to commence. 

13.3. Where a client is legally assisted and the grant of aid is withdrawn or otherwise terminated, a solicitor or law practice may terminate the engagement by giving reasonable notice in writing to the client, such that the client has a reasonable opportunity to make other satisfactory arrangements for payment of costs which would be incurred if the engagement continued. 

Commentary

13.1 Completion of legal services

Subject to Rule 13.1, a solicitor must complete the work for which they were retained before any liability for costs arises with the client (subject to the express terms of any retainer). Solicitors' retainers are in this way viewed as entire contracts: Cutter v Powell (1795) 101 ER 573. This presumption is not unqualified. For example, a solicitor has a right to recover their professional costs on a restitutionary basis for work done before termination of the engagement. Planché v Colburn [1831] ER 856; Legal Services Commissioner v Baker [2006] QCA 145, [3]. The solicitor and client can agree that the solicitor is entitled to charge on an interim basis for professional services and disbursements.⁵⁶  The engagement can only be terminated as provided by Rule 13.1:

• By prior agreement of the client⁵⁷
• By the client discharging the solicitor
• By the solicitor terminating the engagement for just cause and on reasonable notice, or
• By operation of law.

Even if found negligent, a solicitor may recover costs from the client 'which are severable, untainted by negligence and which relate to matters distinct from those upon which the solicitor has been found negligent': Cachia v Isaacs (1985) 3 NSWLR 366, 371.

13.1.2 Discharge by client

There is an implied term in a retainer enabling the client to terminate it at any time, without providing a reason: Court v Berlin [1897] 2 QB 396. A solicitor should only consider the retainer terminated by a client when a client gives a clear indication of their intention to do so: Re Wingfield & Blew (Solicitors) [1904] 2 Ch 665, 684. It is not enough for the client to express dissatisfaction with the solicitor; the solicitor must 'bring matters to a head' so that the client’s intention to terminate is clear and unequivocal: Stark v Dennett [2008] QCA 50, in which Keane JA at [45] commented that:

"One can readily understand that the respondent [solicitor] may have regarded the appellant [client] as a demanding and, even an ungrateful, client. It may well be that the appellant’s expressions of a want of confidence in the respondent’s advice were such that the respondent would have been justified in calling upon the appellant at some earlier stage to state clearly, once and for all, whether the appellant wished to continue to retain the respondent in his action, making it clear in this regard that a continuation of the appellant’s expressions of discontent would be treated as manifesting a breakdown of the trust and confidence essential to the continuation of the retainer. But the respondent did not bring matters to a head in such a clear and unequivocal way before denying the appellant access to his own papers."

13.1.3 Termination for just cause

A solicitor cannot unilaterally terminate the retainer without 'just cause' and on 'reasonable notice': Underwood Son & Piper v Lewis [1894] 2 QB 306, 314.⁵⁸ 'Just cause' can arise where there is 'breach or repudiation of the retainer by the client': Legal Services Commissioner v Baker [2006] QCA 145, [3]. 'Just cause' to terminate is a question of fact, and Dal Pont provides a non-exhaustive list⁵⁹:

• The client's behaviour is 'inconsistent with continuing representation, preventing the lawyer from properly performing their duties', for example if the client:

• breaches the costs agreement regarding fees or expenses;
• delays or refuses to pay the lawyer’s costs in breach of the costs agreement;
• misrepresents the facts of the matter to the lawyer (see Kavia Holdings v Werncog [1999] NSWSC 839 discussed under Rule 19.2 below);
• insists that the lawyer breach the law or professional rules;
• casts insulting imputations upon the lawyer’s character or conduct; or
• clearly indicates that they have retained or intends to retain another solicitor to carry out the same subject matter covered by the retainer (see Stark v Dennett discussed under Rule 13.1.2 above).

• The continuation of the retainer would result in the lawyer breaching their duty of confidentiality, fiduciary or professional obligations: see Rules 9 to 12.
• The retainer is likely to have a seriously adverse effect upon the lawyer’s health: Forney v Bushe (1954) 104 LJ 604.
• The client or the lawyer has died or become insane^.60

What is 'reasonable notice' is a question of fact.

13.1.4 Termination by operation of law

Rule 13.1.4 includes situations in which the solicitor is struck off in the course of the retainer: Ireland v Trilby Misso Lawyers [2011] QSC 127. 

For Queensland practitioners, refer to Guidance Statement No. 8 – Termination of a retainer.

13.2 Costs in a serious criminal trial

Where a client has not made satisfactory arrangements to pay legal costs in a serious criminal trial, the solicitor may only terminate the engagement with the required written notice, being:

1. served a reasonable time before the date appointed for commencement of the trial and providing the client at least seven days to make satisfactory arrangements for the payment of costs (ASCR Rule 13.2), and
2. prescribed notice to the court.

A solicitor may be obliged, depending on the jurisdiction to comply with Rule 18 and 19 of the Criminal Practice Rules 1999 which requires a solicitor seeking leave to withdraw from representing an accused person to give a prescribed notice to the court and prosecution at least 21 days prior to the accused’s next appearance in court.

Considered together, the two rules require the solicitor to give the Rule 13.2 notice at least 28 days before the accused’s next appearance in court.

56 For further consideration of these issues, refer to Queensland Law Society Costs Guide 2014 edition.

57 The costs agreement can further delineate the terms on which a solicitor can terminate a retainer with the client.

58 See also: Legal Services Commissioner v Baker [2006] QCA 145, [3] (McPherson JA).

59 GE Dal Pont, Lawyers’ Professional Responsibility (Lawbook Co, 5th ed, 2013) 97.

60 Ibid 97-8.