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Ethics

: Legal Ethics Forum

Supreme Court of Canada decision on lawyer withdrawal from criminal proceedings

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The Supreme Court of Canada has issued a significant decision on the question of judicial authority over withdrawal by counsel in scheduled criminal proceedings: R. v. Cunningham 2010 SCC 10 . In a unanimous decision, the Court overturned the Yukon Territory Court of Appeal judgment that had held that a court has no jurisdiction to ask a lawyer why she is withdrawing, and no jurisdiction to require the lawyer to continue with proceedings.

The Supreme Court held that both superior (inherent jurisdiction) and statutory courts have jurisdiction to require counsel to continue, that asking counsel about the reasons for withdrawal does not violate privilege, and requiring counsel to continue does not create an improper conflict of interest or interfere with independence of the bar. The Court held that where counsel seeks to withdraw sufficiently in advance of proceedings such that an adjournment would not be necessary, the court should permit withdrawal without requiring counsel to give reasons. Where timing is at issue, and counsel states that the withdrawal is for ethical reasons, then ?the court must accept counsel?s answer at face value and not enquire further so as to avoid trenching on potential issues of solicitor-client privilege? (para. 48). ?Ethical reasons? include a request by the client that the lawyer violate ethical obligations or refusal of the accused to accept advice of counsel ?on an important trial issue? (para. 48). The Court must grant a request to withdraw for ethical reasons (para. 49). Where withdrawal is for non-payment of fees, permission to withdraw lies in the court?s discretion; the discretion should take into account the feasibility of self-representation, the availability of alternative representation, the impact of delay, the conduct of counsel and the history of proceedings. Since none of these factors involve matters specific to the lawyer-client relationship, considering them will not breach privilege.

This decision is in line with most other provincial appellate court decisions. What is of note, however, is the court's decision that withdrawal for ethical reasons must be granted, and that the court may not inquire into the nature of those reasons. My understanding is that practice in many trial courts has been for courts to ask questions, of the lawyer and of the client, as to the reasons for withdrawal even when they are said to be "ethical" in nature. It will be interesting to see whether practice follows the judgment of the Supreme Court in this respect.

Also of note - although a sidebar to the main issue - is the decision of the court that information about fees is not privileged in this context. Two earlier SCC decisions (in the context of law office searches) have held that fee information was privileged. The Court held here that fee information is only privileged where it is material to the subject matter of the representation.

I have a longer comment on this judgment that will be posted at ABlawg tomorrow.

Full post as published by Legal Ethics Forum on March 31, 2010 (boomark / email).