When should lawyers be able to withdraw from a case?

[Barrister]

The Supremes came out with a decision - and the Crown won.

The headnote:

Citation:  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