Ethical duties of Crown Counsel withdrawing services

March 4, 1999

The Criminal Justice Branch of the Ministry of the Attorney General has asked this Committee for a review of the professional responsibilities of lawyers employed as Crown Counsel when engaged in a collective action to withdraw services. This follows on the announcement by the British Columbia Crown Counsel Association of a study session to take place on two consecutive days in March, 1999. The Committee has had the benefit of submissions on behalf of both the Association and the Branch. We were advised that the Association gave the Branch four weeks notice of the specific dates on which services would be withdrawn and three additional weeks notice that a withdrawal of services would take place.

In 1991 and in 1994, this Committee gave its opinion on whether there was any conflict between the ethical duties of legal aid lawyers and the collective action taken by them at that time. Those opinions were published in the April-May, 1991 and July-August, 1994 Benchers' Bulletins. In 1998, the Ethics Committee was asked to reconsider its opinion and reaffirmed it in an opinion that was provided to the interested parties.

To the extent that those opinions apply in the current situation, they remain the opinions of the Committee.

1.  Refusing new files

In 1991 and 1994, the Committee was unanimously of the view that it is not unethical for a lawyer to refuse to take a new case. The current situation is not the same in that there is an employment contract, which includes an agreement to accept new files as assigned by the employer. However, breach of that contract does not necessarily give rise to ethical issues.

2.  Withdrawing from cases in progress

Chapter 10 of the Professional Conduct Handbook governs the occasions on which lawyers are permitted (or in some cases, required) to withdraw from matters in progress. These provisions apply to Crown Counsel as much as to lawyers in private practice.

The relevant parts of that chapter are:

Residual right to withdraw

3.  In situations not covered by Rules 1 and 2, a lawyer may sever the solicitor-client relationship or withdraw as counsel only if the severance or withdrawal:

(a) will not be unfair to the client, and

(b) is not done for an improper purpose.

4.  Unfairness to the client will depend on the circumstances of each case, but will normally include consideration of whether the severance or withdrawal will:

(a) occur at a stage in the proceedings where the client will have to retain another lawyer to do the same work, or part of it, again,

(b) leave the client with insufficient time to retain another lawyer, and

(c) give the newly retained replacement lawyer insufficient time to prepare to represent the client.

5.  Impropriety will depend on the circumstances of each case, but will include severance or withdrawal in order to:

(a) delay court proceedings, and

(b) assist the client in effecting an improper purpose.

It is not the intention of the Ethics Committee to comment on the merits of the proposed withdrawal of services. For the purposes of this opinion, we assume that support of that withdrawal of services is not an improper purpose for withdrawing from representing a client, including the provincial Crown. It is the responsibility of each lawyer to ensure that he or she does not withdraw for an improper purpose.

In the context of a withdrawal of legal aid services, it was the Committee's opinion that it is not permissible for a lawyer to withdraw from a matter in support of a collective withdrawal of services without the consent of the client, either as an express term of the retainer agreement or by informed consent freely given at the time of the withdrawal.

That was because, when the client is an individual legal aid client, that breach of contract would be unfair to the client, which is prohibited under Rule 3(a). When the client has the resources available to the Province of British Columbia, the result may be different. However, even in that case, there may be instances when no amount of notice would be sufficient to allow withdrawal.

It is the Committee's view that the work that Crown Counsel perform is critical and that, in the context of a collective withdrawal of services, the question of when a lawyer may withdraw from a Crown Counsel commitment cannot be made without due regard for the interests of Crown, the courts, potential accused persons and others involved in the justice system. The Committee concluded that a decision in this context that permitted lawyers to withdraw from a commitment to perform Crown Counsel services, by simply giving notice, did not give sufficient recognition to the essential role that Crown Counsel play in the justice system. It depends on the facts of individual cases whether it is unfair to the Crown and the other parties to the criminal justice system for Crown Counsel to withdraw on the notice given in the present circumstances.