In R. v. Cunningham, 2010 SCC 10, the unanimous court cautioned that judges should only use their authority "sparingly."
"Ordering counsel to work for free is not a decision that should be made lightly," wrote Justice Marshall Roth stein.
Cunningham, then a Whitehorse lawyer, had sought to withdraw from the case, only one month before a preliminary hearing, when her client was cut off public funding for failure to report income.
Note, the Court says if a lawyer seeks to withdraw for ethical reasons the withdrawal must be allowed.
The Court wrote:
[45] That being said, ordering counsel to work for free is not a decision that should be made lightly. Though criminal defence counsel may be in the best position to assess the financial risk in taking on a client, only in the most serious circumstances should counsel alone be required to bear this financial burden. In general, access to justice should not fall solely on the shoulders of the criminal defence bar and, in particular, legal aid lawyers. Refusing to allow counsel to withdraw should truly be a remedy of last resort and should only be relied upon where it is necessary to prevent serious harm to the administration of justice.
D. Refusing Withdrawal
[46] The court's exercise of discretion to decide counsel's application for withdrawal should be guided by the following principles.
[47] If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel's reasons for seeking to withdraw or require counsel to continue to act.
[48] Assuming that timing is an issue, the court is entitled to enquire further. Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged. Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused. Counsel may cite "ethical reasons" as the reason for withdrawal if, for example, the accused is requesting that counsel act in violation of his or her professional obligations (see, e.g., Law Society of Upper Canada, r. 2.09(7)(b), (d); Law Society of Alberta, c. 14, r. 2; Law Society of British Columbia, c. 10, r. 1), or if the accused refuses to accept counsel's advice on an important trial issue (see, e.g., Law Society of Upper Canada, r. 2.09(2); Law Society of Alberta, c. 14, r. 1; Law Society of British Columbia, c. 10, r. 2). If the real reason for withdrawal is non-payment of legal fees, then counsel cannot represent to the court that he or she seeks to withdraw for "ethical reasons". However, in either the case of ethical reasons or non-payment of fees, 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.
[49] If withdrawal is sought for an ethical reason, then the court must grant withdrawal (see C. (D.D.), at p. 328, and Deschamps, at para. 23). Where an ethical issue has arisen in the relationship, counsel may be required to withdraw in order to comply with his or her professional obligations. It would be inappropriate for a court to require counsel to continue to act when to do so would put him or her in violation of professional responsibilities.
[50] 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 (C. (D.D.), at p. 327). 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.
As these factors are all independent of the solicitor-client relationship, there is no risk of violating solicitor-client privilege when engaging in this analysis. On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice. If the answer is yes, withdrawal may be refused.
[51] Harm to the administration of justice is not simply administrative inconvenience as the interveners suggest. Harm to the administration of justice recognizes that there are other persons affected by ongoing and prolonged criminal proceedings: complainants, witnesses, jurors and society at large. Because of this, I would respectfully observe that the consideration suggested by the Alberta Court of Appeal in C. (D.D.) of whether allotted court time can be otherwise usefully filled is not a relevant consideration in this balancing of interests.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
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