From the Ethics Committee
Withdrawal of counsel in criminal matters – implications of R. v. Cunningham
In the recent case from the Yukon, R. v. Cunningham, 2010 SCC 10, the Supreme Court of Canada determined that, in a criminal matter, a court has the authority to require counsel seeking to withdraw from a case to continue to represent an accused when the reason for withdrawal is non-payment of fees. With respect to this aspect of withdrawal, this is a reversal of the law in British Columbia stated in Re Leask and Cronin (1985), 66 BCLR 187 (SC), which determined that, if a lawyer decides to withdraw as counsel in a proceeding, the court has no jurisdiction to prevent the lawyer from doing so, subject to the court’s authority to cite a lawyer for contempt if there is evidence the withdrawal was done for some improper purpose.
While the Supreme Court emphasized in Cunningham that refusing to allow counsel to withdraw in these circumstances should truly be a remedy of last resort to prevent serious harm to the administration of justice, it also opined:
If withdrawal is sought because of non-payment of legal fees, the court may exercise its discretion to refuse counsel’s request. The court’s order refusing counsel’s request to withdraw may be enforced by the court’s contempt power. In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors:
- whether it is feasible for the accused to represent himself or herself;
- other means of obtaining representation;
- impact on the accused from delay in proceedings, particularly if the accused is in custody;
- conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time;
- impact on the Crown and any co-accused;
- impact on complainants, witnesses and jurors;
- fairness to defence counsel, including consideration of the expected length and complexity of the proceedings;
- the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.
The Ethics Committee expects Chapter 10, footnote 2 of the Professional Conduct Handbook to be amended to refer expressly to R. v. Cunningham. However, counsel have always been bound by Chapter 10, Rule 7 which states:
A lawyer must not withdraw because the client has not paid the lawyer’s fee when due unless there is sufficient time for the client to obtain the services of another lawyer and for that other lawyer to prepare adequately for trial.
In the committee’s opinion, counsel’s obligation has not changed because of Cunningham;Rule 7 has always prevented counsel from withdrawing when it is unfair to a client to do so. What has changed is that it is now clear the court has the power, in certain circumstances, to refuse to permit counsel to withdraw from a criminal case. Such a refusal may occur if the proposed withdrawal results from the client’s failure to comply with the financial terms of the retainer, and if the court is of the opinion that the withdrawal will leave the client with insufficient time to retain and instruct new counsel and the client’s inability to do that will cause serious harm to the administration of justice. The Law Society continues to have power to discipline lawyers for breaches of Rule 7.
How can lawyers comply with Rule 7?
A lawyer who proposes to withdraw because of a client’s failure to comply with the financial terms of a retainer should take the following steps:
- Advise the client in writing the lawyer will withdraw from the case unless the client provides the necessary retainer by a certain date. The date must be one that leaves the client sufficient time to retain other counsel if the client is unable to come up with the necessary funds, or
- Act for the client in a limited capacity only, and do not go on the record for the client until the client has provided the necessary retainer for the trial or other matters requiring representation. When acting in a limited capacity for a client, a lawyer must comply with Chapter 10, Rule 10 of the Professional Conduct Handbook, which states:
A lawyer who acts for a client only in a limited capacity must promptly disclose the limited retainer to the court and to any other interested person in the proceeding, if failure to disclose would mislead the court or that other person.
What can lawyers say to the court?
In the Cunningham decision, it was determined that, if a lawyer’s reason for withdrawal goes to the merits of the case or would cause prejudice to the client, solicitor-client privilege may attach to the information. In that circumstance, a lawyer may not disclose it to the court. If the reason for withdrawal does not involve these considerations, a lawyer may give the following explanations to the court:
If the lawyer’s withdrawal is for ethical reasons
If a lawyer seeks to withdraw from a case because the lawyer is in a conflict, has received instructions from the client that require the lawyer to cease acting or for other reasons relating to the lawyer’s ethical obligations, the lawyer may advise the court that he or she is withdrawing “for ethical reasons.”
If the lawyer’s withdrawal occurs under Chapter 10, Rules 2 or 3
In other circumstances, if the lawyer is permitted to withdraw under Chapter 10 of the Professional Conduct Handbook, but the circumstances do not engage the lawyer’s ethical obligations, the lawyer may be permitted to advise the court that the lawyer’s reasons for withdrawing do not involve the lawyer’s financial arrangements with the client. Such circumstances could occur under Chapter 10, Rules 2 or 3, which permit a lawyer to withdraw when there has been a serious loss of confidence between lawyer and client and the withdrawal is not unfair to the client or done for an improper purpose.
A lawyer may amplify this explanation by providing other non-confidential information to the court in support of the withdrawal. For example, a lawyer may be compelled to withdraw because another trial might have lasted longer than anticipated or for other reasons related to the lawyer’s workload.
If the lawyer’s withdrawal is for non-payment of fees
If a lawyer seeks to withdraw because a client has failed to pay the lawyer’s fees, the lawyer must disclose that information to the court when asked to explain the withdrawal.
What if a lawyer cannot disclose the reason for withdrawal?
If a lawyer is unable to answer a court’s request for the reason for withdrawal because the reason goes to the merits of the case or the client will be prejudiced by disclosing the information, the lawyer should simply advise the court of that fact. A lawyer who expects to be in such a position may want to consult a Bencher or Law Society practice advisor.
When must counsel appear in court to withdraw from a criminal matter?
If counsel’s withdrawal raises no issue about adjournment of the case, counsel may withdraw from a criminal case by notifying the client, the Crown and the appropriate registry of the withdrawal. If the withdrawal may raise such an issue, however, counsel should attend at court to withdraw.
Further analysis of R. v. Cunningham can be found in the Case Comment by David Layton in the Spring 2010 issue of The Verdict, published by The Trial Lawyers Association of BC.The articlemay be obtained from the Trial Lawyers Association by contacting Moya Larkin at firstname.lastname@example.org.