“If solicitors cannot obtain instructions or funding from the client then they are entitled to file a notice that they have ceased to act.[2]“
The general rule in litigation is that Solicitors are entitled to cease acting for a client (quit) in legal proceedings if the client does not pay or provide timely instructions. This is because the Court system relies heavily on solicitors ensuring parties to litigation are complying with Court Orders and appearing on Court dates.
If Solicitors are unable do their job because they are not paid or provided with details of a case, then they can quit.
Usually this will entail the Solicitor filing and serving a notice on all relevant parties called a “Notice of Ceasing to Act”.
An authority for this proposition is found in the Supreme Court of Victoria is Blue Cross Properties (Toorak) Pty Ltd v Mackie & Staff Pty Ltd [2007] VSC 304; BC200707077 at [16] . There is an exception (in limited circumstances) as set out in Investec Bank (Australia) Ltd v Mann [2012] VSC 81; BC201201133. In that case, 11 days before trial (the trial date having been set some months ago) the solicitors applied for leave to cease acting but the application was refused by the Court. No explanation was given to the Court why the solicitors had not asked for funds for the trial sooner and the Court was concerned about the effect of a late cessation to act by the Solicitors on the resources of the court and the other parties to the litigation.
Therefore, in applying for leave to cease to act when a trial date has been set down, solicitors should explain to the court the basis for ceasing to act and if for non-payment, explain why funds for trial were not sought at an early date and left to the last minute to avoid inconveniencing the Court and other parties.
Kristine Hopkins