Ethics Committee opinions

The Ethics Committee has approved these opinions from the past year for publication - as guidance for the profession as a whole.

Whether a lawyer can limit retainer under criminal case flow management

Chapters 8 and 10 of the Professional Conduct Handbook
(Ethics Committee: November, 2001)

The Criminal Case Flow Management Rules in BC Provincial Court were implemented on September 1, 1999, in phases at different provincial courts throughout the province. Case flow management is the coordination of court processes and resources to move cases in a timely fashion from filing to disposition. The purpose of the program is to ration court time so that only those cases that will be disposed of at trial are scheduled for trial.

A lawyer asked whether it is proper under the Criminal Case Flow Management Rules for counsel to enter into an agreement with an accused person to act at trial only, and not to act for the accused in any procedural matters leading up to the trial.

The Committee noted that Chapter 10, Rule 10 of the Professional Conduct Handbook contemplates that a lawyer may act in a limited capacity for a client, provided the lawyer discloses promptly to the court and to any other interested person in the proceeding the limited retainer in any case where failure to make disclosure would mislead the court or that other person.

The Committee was of the view that there is no necessary conflict between Rule 10 and the Criminal Case Flow Management Rules. It was therefore the opinion of the Committee that it is proper for counsel to enter into an agreement with an accused person to act at trial only, and not to act for the accused in any procedural matters leading up to the trial. Of course, counsel would have an obligation to explain to the client any risks that a limited retainer of this nature might carry for the client.

Does counsel for accused have an obligation to admit service?

Chapter 1, Rule 4(3) of the Professional Conduct Handbook
(Ethics Committee: March, 2001)

A lawyer asked whether it is proper for counsel who is served by the Crown with a Notice of Intention to Produce Certificates of Analysis (identifying a drug in question), pursuant to the provisions of the Controlled Drugs and Substances Act, to return the documents and advise that he has no instructions to accept service on behalf of his accused client.

The Committee noted the authorities that hold that personal service on counsel is valid service on the accused. However, it was the Committee's view that defence counsel has no obligation to assist the Crown in proving service in these circumstances, and it would be wrong for counsel to do so if it is contrary to client instructions. Counsel for the Crown is, of course, free to argue that its service on defence counsel is effective in spite of defence counsel's refusal to accept such service, but that argument must be directed to the court.