WHEN SILENCE SPEAKS: THE RIGHT TO WITHDRAW WITH PROFESSIONAL DIGNITY

A.        The Silent Turning Point in Litigation

In the theatre of litigation, the spotlight often falls on fiery submissions, strategic objections, and the final moment of judgment. Yet behind every gripping courtroom scene lies a quieter, though no less significant chapter: the solicitor's right to withdraw. It may not arrive with the drama of a trial, but when the solicitor-client relationship falters, it can shape the course of proceedings in profound and lasting ways.

Even the most experienced litigator may reach an impasse that arises not from legal arguments but from breakdowns in communication. When instructions cease, trust erodes, or a client becomes unresponsive, is the solicitor bound to remain in the case until its conclusion? Malaysian civil procedure provides clarity. A solicitor is not expected to soldier on indefinitely. When justified, they are entitled to withdraw from acting, guided by the framework set out in the Rules of Court 2012.

Far from being a retreat, the act of withdrawal, when exercised on proper grounds and in accordance with legal procedure, is a necessary step that upholds the standards of professional conduct. This article examines the legal basis for such action, clarifies the procedural rules, and affirms that ceasing to act is not a sign of abandonment, but rather a reflection of professional responsibility.

B.        Understanding the Legal Framework under Order 64

Order 64 of the Rules of Court 2012 outlines the procedures governing both changes and withdrawals of solicitors.

Broadly, there are two distinct scenarios. Under Rule 1, a party may change solicitors by filing a notice of change and serving it on all parties, including the outgoing solicitor. This process does not require the leave of Court and is typically invoked when a client replaces one solicitor with another while maintaining continuity in the litigation.

Rule 5, by contrast, governs situations where it is the solicitor who seeks to withdraw. Rule 5(1) recognises the right of a solicitor who has ceased to act to apply to the Court for a formal discharge. This generally arises when the client has not filed a notice of change and the solicitor cannot continue due to lack of instructions, a breakdown in communication, non-payment of fees, or other irreconcilable differences. Until the Court grants the application and the resulting Court Order is duly served on all relevant parties, the solicitor still remains on record and is obliged to comply with all Court directions.

The application must be made by way of notice of application and supported by an affidavit stating the reasons for the withdrawal. This mechanism promotes transparency, relieves the solicitor from untenable obligations, and enables the Court to issue appropriate directions in light of any ongoing procedural requirements.

C.        Misconceptions and Unfounded Expectations

A common misconception surrounding a solicitor’s withdrawal is the belief that the opposing party has a right to be directly involved in the process. It is not unusual for the counterparty to raise objections, suggest conditions, or attempt to influence the outcome. However, such participation is neither envisaged nor supported by the Rules. Rule 5(2) clearly states that the application for discharge need only be served on the party for whom the solicitor acted[1]. The Rule confers no right of participation or intervention on them, save for valid grounds recognised by the court.

This principle is affirmed in the English Court of Appeal in Re Creehouse Ltd[2], which interpreted the corresponding provision in the Rules of the Supreme Court 1965 (now reflected in Part 42 of the Civil Procedure Rules 1998), and in pari materia with our Rule 5, as follows:

“It is appropriate, so it seems to me, that this should be done without bringing the other parties into the matter at all, because in many cases the contents of the affidavit may reveal matters which are confidential between solicitor and client. … It follows, in my judgment, that the rule itself makes no provision at all for the other parties to be served with notice that it is the intention of a solicitor to ask the court for leave to remove his name from the record."

Occasionally, parties seek to attach conditions to a solicitor’s withdrawal or urge the Court to pre-emptively decide pending matters based on speculation that the unrepresented party may abandon their case or fail to respond. While concerns about prejudice to the remaining parties are understandable, Rule 5 is not designed to accommodate such anticipatory reasoning. It ensures that the Court evaluates the solicitor’s withdrawal on its own merits, separate from conjecture about future conduct. The discretion to manage proceedings remains with the Court, which is best placed to balance the interests of all parties and uphold the orderly administration of justice.

Even where a solicitor has been properly discharged, it is not uncommon for the counterparty to assume that the outgoing solicitor must continue facilitating communication or handling documents, especially if the former client remains unrepresented. However, the Rules draw a firm boundary. Once a withdrawal is effected by Court Order and served in accordance with Rule 5, the solicitor's obligations come to an end. The fact that the former client has yet to appoint new solicitors does not entitle the counterparty to expect or impose any continuing duties on the discharged solicitor. The principle of procedural fairness does not extend to shifting responsibilities to parties who are no longer legally bound to act.

Therefore, it is essential to recognise that a solicitor’s discharge and the party’s future conduct are separate issues. Once discharge is granted, it falls upon the litigant to decide how to proceed, including whether to appoint new representation. If they fail to act or respond within prescribed timelines, the Court is empowered to proceed in their absence. It is not for the opposing party to dictate or accelerate this process. The Rules provide the structure, and the Court provides the oversight.

D.        Withdrawal Is a Professional Necessity, Not an Evasion

In any event, the withdrawal of a solicitor is not an attempt to shirk responsibility. Rather, it is a safeguard built into the legal system for circumstances where the solicitor is no longer able to act in the best interests of the client. When carried out in good faith and in strict compliance with the Rules, it preserves the dignity of the profession and supports the proper administration of justice.

A solicitor should not be impeded from taking this step where circumstances justify it. On the contrary, the ability to withdraw reflects a principled commitment to professional standards.

E.        Conclusion: A Right Rooted in Integrity

Ultimately, withdrawal is a structured legal mechanism, not a means of evasion. Clients are entitled to steadfast representation, and solicitors who uphold the dignity of the profession will always ensure transparent communication before arriving at such a decision. This clarity and professionalism not only safeguard the client’s interests but also preserve confidence in the legal system.

In this light, the right to withdraw is not one of convenience. It is firmly grounded in professional accountability and procedural fairness. It serves as a reminder that the pursuit of justice demands not only zealous advocacy but also respect for clearly defined roles and boundaries. When exercised with propriety, withdrawal is not a retreat. It is a principled act that affirms the solicitor’s duty to maintain the integrity of legal proceedings, honour ethical obligations, and support the fair and orderly administration of justice.

* Please note that this article is not intended as legal advice for any particular case. Since the facts and circumstances of each case vary, specific legal advice is recommended. You are welcome to reach out to us for a free legal consultation tailored to your situation.