Last updated August 2024 

Except under exceptional circumstances, lawyers have a duty to sign orders that have been agreed to or granted by the court. This obligation may be at odds with a lawyer’s ethical duty to take instructions from their client. Such a conflict can be problematic for a lawyer, even after ceasing to act for the client.  

Consider the situation where the parties reach an agreement that is intended to be reflected in an order or judgment, however, upon being presented with a form of order the client instructs their lawyer not to sign the order as they changed their mind. In such cases if there are no valid objections, the lawyer must sign the order despite the client’s contrary instructions.  

The Court in Martin v. Busenius, 1999 ABQB 100 [Martin] defined a duty to sign orders in agency law, which trumps an ethical duty to follow instructions from clients.  

In Martin, the Court enforced an agreement that was to be reduced to a court order, where the client had later instructed their lawyer not to sign it. The lawyer had authority as an agent to bind the client to the deal and the order mirrored it. Veit, J. commented further: 

After lawyers agree on the terms of an order, in the absence of exceptional circumstances there is a professional obligation to sign the order which reflects the agreement. (para 4) 

In this case, Ms. Martin, through her lawyer, had agreed to the terms of the order that were faxed to her lawyer on December 11, 1998. She was obliged to sign the order reflecting that agreement. (para 25) 

The failure to sign an order that had been agreed on is an egregious failure to properly conduct legal proceedings. (para 27) 

Later in Neddow v. Weidemann, 2008 ABQB 378, Veit, J.  identified some exceptional circumstances which would relieve lawyers of the obligation to sign an order reflecting the parties’ agreement: 

In this context, “exceptional circumstances” would certainly include fraud and the client’s lack of capacity, and might even include a concern by the lawyer that the form of order presented for signature did not, in the lawyer’s opinion, accurately reflect the order given by the court. (para 18) 

In Folkes v. Greensleeves Publishing Limited, 2002 CanLII 44917 (ON CA) [Folkes], and more recently in Hansen v. Hansen, 2023 ABCA 335 [Hansen], appellate courts have affirmed that lawyers owe an obligation to counsel and the court to sign orders that properly reflect the court’s pronouncement or the parties’ agreement. These cases also confirmed that this obligation persists even after the lawyer ceases to act or their services have been terminated. In Folkes, an order granted by the Court was approved as to form by the lawyer for a party who later wanted to challenge it. Simmons, J.A. said:  

Mr. Folkes indicates that counsel for the respondents acted improperly in endorsing the approval of Mr. Folkes’ counsel on the formal order of this court at a time when Mr. Folkes had indicated he intended to proceed on his own behalf. I reject this submission. In Chrysler Credit Canada Ltd. v. 734925 Ontario Ltd. (1991), 1991 CanLII 7311 (ON SC), 5 O.R. (3d) 65 Master Peppiatt noted that counsel have a professional obligation to the court and other counsel to approve an order to which there is no valid objection even after ceasing to act. I agree with his conclusion. To hold otherwise would create an inappropriate impediment to the proper processing of orders of the court. (para 47) 

In Hansen, the Court further clarified that the duty to sign orders is rooted in the role of lawyers as officers of the court: 

It is also worth noting that counsel who represented the appellant at the chambers application had an obligation, as an officer of the court, to approve the order if it accurately set out the outcome: Neddow v Weidemann, 2008 ABQB 378 at para. 20, 92 Alta LR (4th) 331; Folkes v Greensleeves Publishing Ltd, 2002 CanLII 44917 (ON CA), 159 OAC 99 at para. 31 (CA); and see the Practice Note entitled “Signing Court Orders” quoted in Feland v Truss, 2009 ABQB 421 at para. 8, 484 AR 21. Except in exceptional circumstances, that obligation cannot be countermanded by the client, nor does it expire if counsel is discharged. In this situation the respondent should have called on the appellant’s prior counsel to approve the order and need not have engaged the appellant directly. (para 11) 

In addition to the case law discussed above, for orders granted by the court lawyers may rely on Rule 9.6 of the Alberta Rules of Court, which states that an order becomes law at the time of pronouncement, whether or not it has been signed/entered.  

In the result, lawyers appear to have a positive duty to sign court orders which have been granted or agreed to, in the absence of a valid objection and notwithstanding the subsequent instructions of the client. In the face of persistent instructions by the client to implement instructions contrary to professional ethics, a lawyer must withdraw from the representation. This does not absolve the lawyer of the duty to sign a court order.