Withdrawing Mid-Trial When the Client Won't Pay
You are three days into a five-day civil trial. Your client, Ms. Okafor, agreed to a staged fee arrangement and has paid nothing since the first instalment. She has also begun directing you to call a witness whose evidence you believe is fabricated. When you raise the fee arrears, she says she will report you to the regulator unless you continue without payment. The trial judge has set closing submissions for Friday. The client is self-employed and says she cannot afford new counsel; legal aid has declined the file.
1. Can you withdraw from the record at this stage on the basis of non-payment? Explain the test.
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Withdrawal for non-payment is permitted only if it can be done without serious prejudice to the client and with reasonable notice. Mid-trial, the prejudice is severe: the client would face closing submissions without counsel, and the court has allocated finite trial time. Non-payment alone is therefore rarely sufficient at this stage.
The firm should first give clear written notice of the arrears and a reasonable opportunity to pay or arrange payment. If the client cannot pay, the firm must weigh its own interests against the client's right to representation. A court application to be removed from the record may be necessary, and the judge will consider the stage of proceedings, the client's ability to obtain new counsel, and the effect on the trial. The threat of a regulatory complaint is irrelevant to the merits and must not influence the decision.
2. How should you respond to the instruction to call the witness you believe is fabricating evidence?
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You must not call a witness to give evidence you know or believe is false. The duty to the court and the administration of justice overrides the client's instruction. You should advise the client clearly that you cannot present evidence you believe to be fabricated, and explain the consequences of perjury.
If the client insists, you may apply to withdraw if the situation creates a conflict between your duty to the court and your duty to the client. If withdrawal is refused or impractical, you must not examine the witness in a way that presents the false evidence, and you must not disclose the client's confidences beyond what is necessary. The fabricated witness should simply not be called; you need not tell the court why. Document the advice and the client's instructions.