Nova Scotia Annotated Civil Procedure Rules

Part 8 - Counsel, Parties, and Claims

Rule 33 - Counsel

Educational Notes

This Rule governs the process by which a lawyer becomes or is removed as counsel of record. It replaces the previous R.44. The Rule makes two major changes to practice:

  1. A lawyer who is discharged by a client must still complete all tasks the lawyer undertook, or was directed, to perform for the court, including drafting an order (R.33.10(1)). If there is a pending court date the lawyer must appear personally and seek to be removed, unless a notice of new counsel is filed or the judge permits otherwise (R.33.10(2)); and
  2. A lawyer who wishes to withdraw must make a motion to be removed as counsel of record (R.33.11(1)). This is consistent with the previous R.44.06 but counsel did not often comply with the previous Rule.

33.03 - Ceasing to be counsel of record

33.03 Ceasing to be counsel of record

A lawyer ceases to be counsel of record when one of the following events occurs:

(a)     the proceeding concludes;

(b)     the lawyer is discharged and new counsel files a notice of new counsel under Rule 33.06;

(c)     the lawyer is discharged, the party files a notice of intention to act on one’s own under Rule 33.07, and no trial or hearing is scheduled;

(d)     the lawyer is discharged when a trial or hearing is scheduled, no notice of new counsel is filed, and a judge removes the lawyer as counsel of record under Rule 33.10;

(e)     the lawyer finds it necessary to withdraw from being counsel, and a judge removes the lawyer under Rule 33.11.

Index Terms
  • After discharging counsel
  • Change of counsel
  • Counsel of record, discharge or removal
  • Discharge of counsel, client to act on their own
  • Party acting on own after discharging counsel
  • Removal of counsel of record
  • Retaining new counsel
  • Withdrawal of counsel

Annotations

A lawyer in a personal injury action applied to be removed as solicitor of record (under Rule 44.06 of the old Civil Procedure Rules (1972)) after several years passed without any contact with his client. Despite “a relentless search”, he could not locate the client. The chambers judge dismissed his application because the client was not served with notice it was being made. The lawyer appealed. Held, appeal granted. The chambers judge erred. It would be an injustice to force the lawyer to remain as solicitor of record indefinitely, given he could not obtain instructions from his client to advance the litigation.

Full text: Wagner v. Carvery et al., 2009 NSCA 117