When should lawyers be able to withdraw from a case?

[Barrister]

When can counsel withdraw from a case?     
Professional standards insufficient to monitor lawyers, Crown warns

By Tim Shufelt | Publication Date: Monday, 23 November 2009
Should the Supreme Court of Canada decide to limit the authority of judges to prohibit lawyers from walking away from trials, oversight of the withdrawal process will effectively disappear, warns a federal Crown.

Greg DelBigio argues the law society can handle cases of lawyers unethically withdrawing from cases rather than leaving the issue to the courts.Ron Reimer argued before the top court last week that professional standards aren't enough to monitor lawyers withdrawing from representation in criminal trials.

"The idea of effective oversight by the law society is a bit illusory," Reimer says. "A trial judge has a role in terms of supervision of counsel and in ensuring the administration of justice."

In the case of R. v. Cunningham, the top court is considering how judges handle requests to withdraw and whether courts have the jurisdiction to review those requests, a decision that could change the rules for criminal lawyers in several provinces, including Ontario.

Last week, the Canadian Bar Association intervened in the matter, arguing in favour of the right of counsel to get off the record.
If courts are given the authority to review and lawyers are compelled to submit to the court their reasons for withdrawal, breaches of solicitor-client privilege will surely arise, the CBA says.

When a request to withdraw from a criminal proceeding arises, courts should simply operate under the assumption and expectation that lawyers uphold professional standards, says Greg DelBigio, past chairman of the CBA's national criminal justice section.

"Should we presume that lawyers conduct themselves ethically? We think yes," DelBigio says.
The issue first arose when Jennie Cunningham, a lawyer with the Yukon Legal Services Society, asked the court to remove her as

counsel of record for a man accused of sexual assault offences against a six-year-old girl.
The accused man's legal aid certificate was revoked as a result of unreported income. A territorial judge, however, denied Cunningham's application, citing the resulting trial delays and possible harm to the Crown's case should the child's memory fade over time.

That decision was later reversed by the Yukon Court of Appeal, which noted a principle followed in British Columbia: "That a court has no right in law to order counsel to continue in the defence of an accused after counsel has advised that he or she will no longer represent the accused."

Reimer asked the Supreme Court not to apply that standard to the rest of the country.
"[In B.C.], they don't offer the court any reasons why they're going, just a courtesy goodbye," he says.
Currently in Ontario and other provinces, courts reserve the authority to find a lawyer who refuses to remain, "barring good reason," in contempt.

Should the Supreme Court now decide to uphold the appeal court decision, it would effectively afford lawyers greater freedom to withdraw from cases while diminishing the capacity of judges to prevent them from leaving or even inquire into dealings between lawyer and client.

The CBA asserts that lawyers who withdraw unethically will be duly reprimanded by the law society.
Reimer, however, questions that oversight process.

"Is there really going to be any oversight? What's the basis for even referring it to the law society?"
The CBA says its code of conduct should dictate when a lawyer can withdraw from a case and that oversight of the process should fall to the legal profession, not the courts.

"Misconduct is a matter for law societies," DelBigio says.
"While courts might have a limited jurisdiction to prohibit a lawyer from withdrawal from a case, it should be rarely exercised," he adds.

That authority was exercised earlier this month in Kitchener, however, when a lawyer's attempt to get off the record was quashed by a judge.

In that case, counsel applied for a withdrawal after his client could no longer afford to pay privately, according to the Record newspaper. A supporter of the legal aid boycott of murder and guns-and-gangs cases led by the Criminal Lawyers' Association, the lawyer was unwilling to remain on the case at legal aid rates.

Still, Mark Ertel, president of the Defence Counsel Association of Ottawa, says the ruling won't affect the boycott itself.

As in the Bryant matter, Ertel says the province's criminal lawyers will continue to abide by the norms of the profession and won't defy a judge's orders.
"We're not going to do things that are contemptuous of courts," Ertel says.

According to the CBA's code of conduct, lawyers may optionally withdraw services when a client fails to pay legal fees or when a serious loss of confidence has occurred in the lawyer-client relationship, such as the refusal to act on the lawyer's advice on a significant point.

But DelBigio says courts would still have some authority to force counsel to remain.
If a lawyer applies for withdrawal to take a trip to Hawaii, for example, the court would not touch on matters protected by privilege in questioning the move, he says.

"In that instance, the court might have the power to compel a lawyer to continue."
However, there are other circumstances of greater import in which a judge must be allowed to intervene, Reimer says.

The proceedings involving Cunningham's client and a very young complainant illustrate that need, he argues. In such instances, "the interest of justice requires that this person has counsel and this matter goes ahead now."

Reimer doesn't dispute that there are ethical situations requiring a lawyer to justifiably seek a withdrawal. But he adds that withdrawals for non-payment of legal fees are a separate matter.
"The fees situation is different. It's really about security of payment. And there are options in those circumstances."

Reimer also addresses the argument that non-payment can raise an ethical issue since an unpaid lawyer may feel inordinately compelled to see a swift end to a trial.

"That kind of suggestion, frankly, does a disservice to the bar."
The suggestion that "honourable counsel" wouldn't carry out their obligations to their clients is invalid, he says. 

http://www.lawtimesnews.com/200911235858/Headline-News/When-can-counsel-withdraw-from-a-case

It might not immediately be obvious from the article, but yes, this is a Yukon case that has made its way right up to the Supreme Court of Canada.  I know the personalities involved, but myself I haven't ever touched this file.

So I thought I would throw this issue out there for discussion.  Should a lawyer be able to withdraw their services at any time?  Or should the court oversee the entire process, and grant permission to withdraw as counsel.  For lawyers out there, what is the practice in your area?

[Jacob]

Based on very limited understanding, I'd say courts would have to oversee the process.  Lawyers withdrawing at any time could have serious repercussion for their clients.

[dps]

I have rather limited faith in the idea of the bar association (or any other professional organization) being the sole agent policing the conduct of its members, beyond the review of the courts or any other outside authority.

[crazy canuck]

I don't know about the rules for withdrawing from a criminal matter but under the BC civil rules the lawyer's client and even the opposing party may object to the proposed withdrawl and that objection is heard by the Court.

The problem I have with the Court overseeing the withdrawl is what if the reason for the withdrawl is that the lawyer learns that the client is going to lie when giving evidence.  Under our rules of conduct we cannot put the person on the stand in those circumstances but if the person must take the stand for their case to be properly heard what option does the lawyer have but to withdraw and then how does one explain all that to the Court - seems to me the law society is a better venue for that.

[crazy canuck]

I have rather limited faith in the idea of the bar association (or any other professional organization) being the sole agent policing the conduct of its members.

That is how it works in Canada for both lawyers and Doctors.  FYI most bar associations have non lawyers sitting on their boards and tribunals to represent the interests of the public.

[Barrister]

I don't know about the rules for withdrawing from a criminal matter but under the BC civil rules the lawyer's client and even the opposing party may object to the proposed withdrawl and that objection is heard by the Court.

The problem I have with the Court overseeing the withdrawl is what if the reason for the withdrawl is that the lawyer learns that the client is going to lie when giving evidence.  Under our rules of conduct we cannot put the person on the stand in those circumstances but if the person must take the stand for their case to be properly heard what option does the lawyer have but to withdraw and then how does one explain all that to the Court - seems to me the law society is a better venue for that.

Really?  The Yukon Court of Appeal decision (which remember is your BC Court of Appeal wearing different hats) was quite clear that the rule in BC was that a lawyer need not ask for permission before withdrawing.

http://www.canlii.org/en/yk/ykca/doc/2008/2008ykca7/2008ykca7.html

I do actually respect the Law Society a fair bit - they do a lot to protect clients from unscrupulous lawyers, but in terms of policing in-court conduct they are an absolute non-factor.

[Malthus]

Doesn't arise in my area. Clients fire lawyers here, not the other way around.  However, I do know that here in Ontario, you need to bring a motion to get off the record.

What strikes me as odd (though I've never encountered it) is the notion that a lawyer should not be able to withdraw if s/he's not being paid. How can the courts or law society require that someone in essence work for nothing? If they do, what sort of quality representation are they likely to get?

[Barrister]

What strikes me as odd (though I've never encountered it) is the notion that a lawyer should not be able to withdraw if s/he's not being paid. How can the courts or law society require that someone in essence work for nothing? If they do, what sort of quality representation are they likely to get?

That is the potential downside of needing to ask for permission - lawyers potentially working for free.

And I imagine they'd get just as good of representation as they would otherwise.

[Jacob]

I would rather imagine that the court is going to let a lawyer withdraw if he's not being paid.

[Barrister]

I would rather imagine that the court is going to let a lawyer withdraw if he's not being paid.

If (like in this case) it's the morning of trial, probably not.

The lawyer should have sorted out the fees weeks, if not months, earlier.  If they let it go until the day of trial it's the lawyer's problem, not the court's.

Or at least that's how I see it.

[ulmont]

So I thought I would throw this issue out there for discussion.  Should a lawyer be able to withdraw their services at any time?  Or should the court oversee the entire process, and grant permission to withdraw as counsel.  For lawyers out there, what is the practice in your area?

I tend to think that the court should oversee the process, but should not withhold permission to withdraw as long as the withdrawal would not severely prejudice the (ex)-client.

After all, there are certain circumstances where the attorney has the right (and others where the attorney has the obligation) to withdraw.

The practice in my area (mostly federal courts in Texas and Georgia) is to move for withdrawal, which is usually granted.

[Barrister]

The problem I have with the Court overseeing the withdrawl is what if the reason for the withdrawl is that the lawyer learns that the client is going to lie when giving evidence.  Under our rules of conduct we cannot put the person on the stand in those circumstances but if the person must take the stand for their case to be properly heard what option does the lawyer have but to withdraw and then how does one explain all that to the Court - seems to me the law society is a better venue for that.

The euphemism I've heard is "irrevocable breakdown in the solicitor-client relationship".   aka he won't listen to my advice, or wants me to do something unethical.

[Malthus]

The problem I have with the Court overseeing the withdrawl is what if the reason for the withdrawl is that the lawyer learns that the client is going to lie when giving evidence.  Under our rules of conduct we cannot put the person on the stand in those circumstances but if the person must take the stand for their case to be properly heard what option does the lawyer have but to withdraw and then how does one explain all that to the Court - seems to me the law society is a better venue for that.

The euphemism I've heard is "irrevocable breakdown in the solicitor-client relationship".   aka he won't listen to my advice, or wants me to do something unethical.

The problem I can foresee is this: if you have a euphemism which always succeeds because courts are reluctant to probe into the details of the solicitor-client relationship (what judge wants to force the admission "my client wanted to lie on the stand?"), it makes a mockery of any notions of meaningful oversight. 

[crazy canuck]

Really?  The Yukon Court of Appeal decision (which remember is your BC Court of Appeal wearing different hats) was quite clear that the rule in BC was that a lawyer need not ask for permission before withdrawing.

Here is the link to the civil rule.  Sub 6 is the section dealing with objecting to the withdrawl.  It is true a lawyer need not ask permission but if any party objects then the court has to decide the matter.


http://www.bclaws.ca/Recon/document/freeside/--%20s%20--/supreme%20court%20act%20%20rsbc%201996%20%20c.%20443/05_regulations/11_221_90%20supreme%20court%20rules/221_90_02.xml#rule16subrule1

[crazy canuck]

I would rather imagine that the court is going to let a lawyer withdraw if he's not being paid.

Actually that is one of the worst reasons to give - especially if a court date is near.