QuoteWhen 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The accused man's legal aid certificate was revoked as a result of unreported income.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?
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.
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.
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.
Quote from: dps on November 23, 2009, 05:48:23 PM
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.
Quote from: crazy canuck on November 23, 2009, 05:50:37 PM
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.
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?
Quote from: Malthus on November 23, 2009, 05:59:23 PM
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.
I would rather imagine that the court is going to let a lawyer withdraw if he's not being paid.
Quote from: Jacob on November 23, 2009, 06:10:35 PM
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.
Quote from: Barrister on November 23, 2009, 05:39:21 PM
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.
Quote from: crazy canuck on November 23, 2009, 05:50:37 PM
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.
Quote from: Barrister on November 23, 2009, 06:29:21 PM
Quote from: crazy canuck on November 23, 2009, 05:50:37 PM
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.
Quote from: Barrister on November 23, 2009, 05:56:01 PM
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
Quote from: Jacob on November 23, 2009, 06:10:35 PM
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.
You can't force a man to work for you. That's called slavery. The judge should be able to make adjustments for counsel that quits. Postpone the case so the new guy can catch up--that sort of thing.
QuoteProfessional standards insufficient to monitor lawyers
Understatement of the year.
Quote from: Jacob on November 23, 2009, 06:10:35 PM
I would rather imagine that the court is going to let a lawyer withdraw if he's not being paid.
But why this should this even be subject to the court's approval?
If you are working for someone and they stop paying you, do you need to go to court to tell you that you are free to stop working for them?
Quote from: MadImmortalMan on November 23, 2009, 07:02:06 PM
You can't force a man to work for you. That's called slavery.
Errr no. Slavery is forcing someone to work for you
for free.
Forcing someone to perform a contract they signed is something normal, especially if the other party performed their part.
Now, it is usually recognized that specific performance in contracts can be counterproductive, especially in cases where it involves some work/service being performed, and it is usually more sensible to award damages to let the client find someone actually willing to work. But it has nothing to do with slavery.
Quote from: Martinus on November 23, 2009, 07:06:18 PM
Quote from: MadImmortalMan on November 23, 2009, 07:02:06 PM
You can't force a man to work for you. That's called slavery.
Errr no. Slavery is forcing someone to work for you for free.
Forcing someone to perform a contract they signed is something normal, especially if the other party performed their part.
That's indentured servitude. We also called that "sharecropping".
Quote from: Martinus on November 23, 2009, 07:06:18 PM
Forcing someone to perform a contract they signed is something normal, especially if the other party performed their part.
Not in the US, if the contract would require personal services, specifically to avoid the involuntary servitude problem. Forcing someone to pay damages, sure; forcing someone *not* to take a specified act, ok; forcing someone to actually do something, no.
Quote from: Martinus on November 23, 2009, 07:04:37 PM
Quote from: Jacob on November 23, 2009, 06:10:35 PM
I would rather imagine that the court is going to let a lawyer withdraw if he's not being paid.
But why this should this even be subject to the court's approval?
If you are working for someone and they stop paying you, do you need to go to court to tell you that you are free to stop working for them?
Because it can fuck with a hell of a lot more people than just the lawyer if trials get adjourned/moved.
If a lawyer asks to get off the record months before a trial because of unpaid fees? Of course it'll be granted. But the morning of trial, with the court and the witnesses ready to go? That's a different matter.
Quote from: Barrister on November 23, 2009, 07:29:09 PM
Quote from: Martinus on November 23, 2009, 07:04:37 PM
But why this should this even be subject to the court's approval?
If you are working for someone and they stop paying you, do you need to go to court to tell you that you are free to stop working for them?
Because it can fuck with a hell of a lot more people than just the lawyer if trials get adjourned/moved.
If a lawyer asks to get off the record months before a trial because of unpaid fees? Of course it'll be granted. But the morning of trial, with the court and the witnesses ready to go? That's a different matter.
Yeah, but that's the nature of freedom. Sometimes not forcing people can cause others headaches. It can cause all kinds of awful stuff, actually. Just because it will doesn't make it okay to make them stay on against their will.
Quote from: MadImmortalMan on November 23, 2009, 07:41:50 PM
Quote from: Barrister on November 23, 2009, 07:29:09 PM
Quote from: Martinus on November 23, 2009, 07:04:37 PM
But why this should this even be subject to the court's approval?
If you are working for someone and they stop paying you, do you need to go to court to tell you that you are free to stop working for them?
Because it can fuck with a hell of a lot more people than just the lawyer if trials get adjourned/moved.
If a lawyer asks to get off the record months before a trial because of unpaid fees? Of course it'll be granted. But the morning of trial, with the court and the witnesses ready to go? That's a different matter.
Yeah, but that's the nature of freedom. Sometimes not forcing people can cause others headaches. It can cause all kinds of awful stuff, actually. Just because it will doesn't make it okay to make them stay on against their will.
No one forces a lawyer to start working for anybody in the first place.
But once you do go "on the record" you do owe a professional responsibility to the court that you can't just walk away from at a moment's notice.
Quote from: Barrister on November 23, 2009, 07:45:43 PM
No one forces a lawyer to start working for anybody in the first place.
But once you do go "on the record" you do owe a professional responsibility to the court that you can't just walk away from at a moment's notice.
Oh yes, I totally understand that. Any lawyer that dicks over their client like that deserves to burn in hell. I just think it's a greater evil to force them to work against their will.
Quote from: MadImmortalMan on November 23, 2009, 08:02:09 PM
Quote from: Barrister on November 23, 2009, 07:45:43 PM
No one forces a lawyer to start working for anybody in the first place.
But once you do go "on the record" you do owe a professional responsibility to the court that you can't just walk away from at a moment's notice.
Oh yes, I totally understand that. Any lawyer that dicks over their client like that deserves to burn in hell. I just think it's a greater evil to force them to work against their will.
Think of it as similar to the requirement to give 2 weeks notice to your employer.
Quote from: Barrister on November 23, 2009, 08:06:14 PM
Think of it as similar to the requirement to give 2 weeks notice to your employer.
There's no
requirement to do that, but I get where you're coming from, yes.
Quote from: MadImmortalMan on November 23, 2009, 08:02:09 PM
Oh yes, I totally understand that. Any lawyer that dicks over their client like that deserves to burn in hell. I just think it's a greater evil to force them to work against their will.
I have a hard time feeling bad for the lawyers.
Quote from: crazy canuck on November 23, 2009, 05:52:03 PM
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.
How are those non lawyers selected?
By forcing the attorneys to explain themselves, one is assuming that they're acting unethically and forcing them to prove otherwise; one can't manage a professional association where it's assumed that members aren't playing by the rules.
The biggest problem I have with this, though, is giving judges the authority to review. If an attorney's going to walk away from a case, it's either because one has stumbled upon a conflict of interests or because something is so damning it would hinder one's ability to effectively represent one's client. Either way, it's not something a judge should have anything to do with, as either could irrevocably skew a case. If anyone is going to be given oversight authority; it should be the bar association; they do well enough overseeing attorney trust funds.
The usual US rule is that permission of the tribunal is needed to withdraw.
All this business about "slavery" is a bit overdone. Nothing forces an attorney to enter an appearance in a case as counsel of record. Getting stiffed by your client is a risk of doing business in the law (as in everything else). And while a client who breaks a fee agreement should not have the right to compel services, BB is correct that it may be that other innocent parties have interests at stake that need to be considered.
Quote from: Admiral Yi on November 23, 2009, 08:25:58 PM
Quote from: crazy canuck on November 23, 2009, 05:52:03 PM
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.
How are those non lawyers selected?
Off the top of my head I dont remember the specifics but I think they are appointed by the Provincial government in consultation with public interest groups.
Quote from: ulmont on November 23, 2009, 07:27:29 PM
Not in the US, if the contract would require personal services, specifically to avoid the involuntary servitude problem. Forcing someone to pay damages, sure; forcing someone *not* to take a specified act, ok; forcing someone to actually do something, no.
How does you merchant navy work?
Quote from: Sheilbh on November 24, 2009, 12:08:57 PM
How does you merchant navy work?
As I understand it, they effectively get drafted by the Navy in time of war, but I really have no clue. The draft generally has been not viewed as impermissible involuntary servitude, for reasons that escape me but are likely thought of as "tradition."
Quote from: ulmont on November 24, 2009, 12:24:15 PMAs I understand it, they effectively get drafted by the Navy in time of war, but I really have no clue. The draft generally has been not viewed as impermissible involuntary servitude, for reasons that escape me but are likely thought of as "tradition."
It just strikes me that if you sign up to serve on a ship you surely can't quit two months in, when the ship's in Manila and you're the navigator?
Quote from: ulmont on November 24, 2009, 12:24:15 PM
Quote from: Sheilbh on November 24, 2009, 12:08:57 PM
How does you merchant navy work?
As I understand it, they effectively get drafted by the Navy in time of war, but I really have no clue. The draft generally has been not viewed as impermissible involuntary servitude, for reasons that escape me but are likely thought of as "tradition."
More that the Constitutional power of Congress to raise and regulate the armed forces under Article 1 Section 8 of the Constitution trumps the prohibition of involuntary servitude in the 13th Admendment. I think that's the theory, anyway. Seems a bit iffy to me.
That theory sounds more than a little iffy. If the later-passed amendment doesn't trump the original text, you can't ever really amend things.
Quote from: ulmont on November 24, 2009, 11:17:25 PM
That theory sounds more than a little iffy. If the later-passed amendment doesn't trump the original text, you can't ever really amend things.
Well, it's more of a "it doesn't apply to the government; it applies to private employers" type of thing, I think.
Which, if anything, is worse.
I doubt that the Civil War era Congress that proposed and passed the Amendment understood "involuntary servitude" to encompass a military draft, given that the same Congress had recently enacted one.
13th amendment case on seaman contracts: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=165&invol=275
QuoteThe prohibition of slavery, in the thirteenth amendment, is well known to have been adopted with reference to a state of affairs which had existed in certain states of the Union since the foundation of the government, while the addition of the words 'involuntary servitude' were said, in the Slaughterhouse Cases, 16 Wall. 36, to have been intended to cover the system of Mexican peonage and the Chinese coolie trade, the practical operation of which might have been a revival of the institution of slavery under a different and less offensive name. It is clear, however, that the amendment was not intended to introduce any novel doctrine with respect to certain descriptions of service which have always been treated as exceptional, such as military and naval enlistments, or to disturb the right of parents and guardians to the custody of their minor children or wards. The amendment, however, makes no distinction between a public and a private service To say that persons engaged in a public service are not within the amendment is to admit that there are exceptions to its general language, and the further question is at once presented, where shall the line be drawn? We know of no better answer to make than to say that services which have from time immemorial been treated as exceptional shall not be regarded as within its purview.
Another case on the military draft: http://supreme.justia.com/us/245/366/case.html
QuoteFinally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.
The analysis in the first case is a bit more persuasive than the second one . . .
Hey Minsky, the entire transcript from your signature is totally insane.
Quote from: The Minsky Moment on November 25, 2009, 12:08:38 PM
13th amendment case on seaman contracts: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=165&invol=275
QuoteThe prohibition of slavery, in the thirteenth amendment, is well known to have been adopted with reference to a state of affairs which had existed in certain states of the Union since the foundation of the government, while the addition of the words 'involuntary servitude' were said, in the Slaughterhouse Cases, 16 Wall. 36, to have been intended to cover the system of Mexican peonage and the Chinese coolie trade, the practical operation of which might have been a revival of the institution of slavery under a different and less offensive name. It is clear, however, that the amendment was not intended to introduce any novel doctrine with respect to certain descriptions of service which have always been treated as exceptional, such as military and naval enlistments, or to disturb the right of parents and guardians to the custody of their minor children or wards. The amendment, however, makes no distinction between a public and a private service To say that persons engaged in a public service are not within the amendment is to admit that there are exceptions to its general language, and the further question is at once presented, where shall the line be drawn? We know of no better answer to make than to say that services which have from time immemorial been treated as exceptional shall not be regarded as within its purview.
Another case on the military draft: http://supreme.justia.com/us/245/366/case.html
QuoteFinally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.
The analysis in the first case is a bit more persuasive than the second one . . .
Well, the first case basically amounts to compelling specific performance for a contract, which certainly makes sense (despite what ulmont posted about specific performance earlier). And yeah, that's a bit more persuasive than the argument in the second case (actually, a lot more persuasive, IMO).
Quote from: Grey Fox on November 25, 2009, 12:39:05 PM
Hey Minsky, the entire transcript from your signature is totally insane.
Yeah - I have a sneaking suspicion the patent holders in that case are not going to prevail.
That will probably end up being one of the most significant opinions to come out this term.
Quote from: The Minsky Moment on November 25, 2009, 01:44:53 PM
Quote from: Grey Fox on November 25, 2009, 12:39:05 PM
Hey Minsky, the entire transcript from your signature is totally insane.
Yeah - I have a sneaking suspicion the patent holders in that case are not going to prevail.
That will probably end up being one of the most significant opinions to come out this term.
It's
In Re Bilksi.
Quote from: ulmont on December 17, 2009, 10:35:06 PM
Quote from: The Minsky Moment on November 25, 2009, 01:44:53 PM
Quote from: Grey Fox on November 25, 2009, 12:39:05 PM
Hey Minsky, the entire transcript from your signature is totally insane.
Yeah - I have a sneaking suspicion the patent holders in that case are not going to prevail.
That will probably end up being one of the most significant opinions to come out this term.
It's In Re Bilksi.
No - that's wrong as well
It's
In Re Bilski.
;)
The Supremes came out with a decision - and the Crown won. :punk:
The headnote:
QuoteCitation: R. v. Cunningham, 2010 SCC 10
Date: 20100326
Docket: 32760
Between:
Her Majesty The Queen
Appellant
v.
Jennie Cunningham
Respondent
‑ and ‑
Attorney General of Ontario, Law Society
of British Columbia, Law Society of Yukon,
Canadian Bar Association and Criminal
Lawyers' Association (Ontario)
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 60)
Rothstein J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron and Cromwell JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
______________________________
R. v. Cunningham
Her Majesty The Queen Appellant
v.
Jennie Cunningham Respondent
and
Attorney General of Ontario, Law Society
of British Columbia, Law Society of Yukon,
Canadian Bar Association and Criminal
Lawyers' Association (Ontario) Interveners
Indexed as: R. v. Cunningham
Neutral citation: 2010 SCC 10.
File No.: 32760.
2009: November 17; 2010: March 26.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for the yukon territory
Law of professions — Barristers and solicitors — Counsel's withdrawal application — Whether, in criminal matter, court has authority to refuse to grant defence counsel's request to withdraw because accused has not complied with financial terms of retainer — Whether oversight of lawyer's withdrawal falls exclusively to law societies.
Courts — Jurisdiction — Counsel's withdrawal application — Whether, in criminal matter, court has authority to refuse to grant defence counsel's request to withdraw because accused has not complied with financial terms of retainer.
C, a criminal defence lawyer employed by Yukon Legal Aid, represented an accused charged with sexual offences against a young child. Prior to the preliminary inquiry, Legal Aid informed the accused that failure to update his financial information would result in the suspension of his legal aid funding. The accused failed to respond to the request and Legal Aid informed him that C was no longer authorized to represent him. C brought an application to the Territorial Court of Yukon to withdraw as counsel of record solely because of the suspended funding. However, C indicated that she was willing to represent the accused if funding were reinstated. The Territorial Court refused her application. The Supreme Court of the Yukon Territory dismissed C's application for an order in the nature of certiorari seeking to quash the Territorial Court's order, holding that the Territorial Court did not exceed its jurisdiction. The Court of Appeal allowed C's appeal on the basis that the Territorial Court had no discretion to refuse C's application to withdraw.
Held: The appeal should be allowed.
The Territorial Court had jurisdiction to refuse to grant C's request to withdraw. A court has the authority to require counsel to continue to represent an accused when the reason for withdrawal is non‑payment of fees, but the authority must be exercised sparingly and only when necessary to prevent serious harm to the administration of justice. Superior courts possess inherent jurisdiction to ensure they can function as courts of law and fulfil their mandate to administer justice. Likewise, in the case of statutory courts, the authority to control their process and oversee the conduct of counsel is necessarily implied in the grant of power to function as a court of law.
Disclosure of non‑payment of fees in cases where it is unrelated to the merits and will not prejudice an accused does not attract the protection of the solicitor‑client privilege, and the remote possibility that a judge will inappropriately attempt to elicit privileged information in hearing the application to withdraw does not justify leaving the decision to withdraw exclusively to counsel. As well, the oversight of a lawyer's withdrawal does not fall exclusively to the law societies. Both the courts and the law societies play different, but important, roles in regulating withdrawal: the courts prevent harm to the administration of justice and the law societies discipline lawyers whose conduct falls below professional standards. These roles are not mutually exclusive; rather, they are necessary to ensure the effective regulation of the profession and protect the process of the court. While counsel's personal or professional interests may be in tension with an individual client's interest, courts must presume that lawyers act ethically. Where the court requires counsel to continue to represent an accused, counsel must do so competently and diligently. Both the integrity of the profession and the administration of justice require nothing less. Lastly, a Rowbotham order might be relevant to the court's residual discretion to refuse withdrawal, but it cannot operate as a replacement for it.
The court's exercise of discretion to decide counsel's application for withdrawal should be guided by the following principles. If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, the court should allow the withdrawal. If timing is an issue, the court is entitled to enquire into counsel's reasons. 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. If withdrawal is sought for an ethical reason, the court must grant withdrawal; if it is sought because of non‑payment of legal fees, the court may exercise its discretion to refuse counsel's request if it determines, after weighing all the relevant factors, that allowing withdrawal would cause serious harm to the administration of justice.
Refusing an application to withdraw is a coercive and conclusive order with respect to the lawyer and, in that context, an order in the nature of certiorari should be given its normal scope and can be allowed where there is an error of jurisdiction or an error of law on the face of the record.
In this case, the Supreme Court of the Yukon Territory correctly concluded that the Territorial Court had the jurisdiction to refuse to grant counsel's request to withdraw. The question of whether this case satisfies the high threshold that must be met to refuse leave to withdraw is now moot and the record before this Court does not provide information on several of the relevant factors. It is, therefore, not clear whether the circumstances of this case would, after full analysis of the relevant considerations, justify a refusal of leave to withdraw.
http://www.canlii.org/en/ca/scc/doc/2010/2010scc10/2010scc10.html