Getting off the record for non-payment during trial

Today's Court of Appeal decision in R. v. Okafor, 2009 ONCA 672 is an important practice case - it suggests that non-payment of fees is not grounds to be removed as counsel of record during trial. The decision is hardly surprising but it does clarify the law:

[7] The appellant's primary complaint on appeal is that the application judge should not have ordered Mr. Roach's removal from the record. In doing so, he violated the appellant's right to be represented by counsel and compromised the fairness of the trial. We agree with that submission.

[8] In our respectful view, the application judge erred in ordering Mr. Roach's removal from the record, part way through the trial, for what effectively amounted to non-payment of legal fees. Unlike the situation in R. v. Downey, [2002] O.J. No. 1524, this case did not involve a fundamental disagreement between the appellant and Mr. Roach; nor was it one involving a serious break down in communications or an ethical dilemma that prevented Mr. Roach from continuing to act. On the contrary, the record shows that while the appellant and Mr. Roach may have had some disagreements as to the manner in which the case should be defended, Mr. Roach was willing to stay on as counsel so long as he was remunerated for his services.

[9] In short, leaving aside minor disagreements as to how the case should be defended, Mr. Roach's concern was financial. To the extent that the application judge found otherwise, in our respectful view, he erred. The record simply does not support a finding of fundamental disagreement, communication break down or ethical dilemma.

[10] In the circumstances, where Mr. Roach had committed to the appellant's defence and represented him for a considerable portion of the trial, it was wrong for the application judge to order Mr. Roach's removal from the record for non-payment of legal fees. See R. v. Brundia, [2007] O.J. No. 4051 (Ont. C.A.) and R. v. Clement, [2002] 166 C.C.C. (3d) 219 (Ont. C.A.). Any disagreement about fees between Mr. Roach and the appellant should have been for the two of them to sort out, either amicably or by means of the civil process.

[11] In short, it was far too late in the process to let Mr. Roach off the record, at least without ensuring that the appellant had other counsel who could properly represent him. Any suggestion that Mr. Roach may have been duped by the appellant rings hollow. Mr. Roach had acted for the appellant in the past and this was not the first time he experienced difficulty collecting his fees. He also knew, or should have known, the strategy the appellant wished to pursue and either refused the brief or protected his fees.