Cunningham good news for lawyers, CLA intervener says

A Supreme Court of Canada ruling that judges can prevent lawyers walking away from trials when the client fails to pay is actually good news for Ontario’s criminal lawyers, according to the man who represented their interests in the case.

“It’s a move in the right direction because it moderates the rule that was in practice in Ontario,” says Scott Hutchison.

He argued on behalf of the Criminal Lawyers’ Association in R. v. Cunningham, in which the top court ruled the power to refuse a withdrawal request is one judges should exert “exceedingly sparingly.”

Justice Marshall Rothstein, who delivered the judgment on behalf of his unanimous colleagues, laid out strict rules for a judge’s exercise of discretion over withdrawal.

“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,” he wrote.

“That’s a much higher threshold than we’ve seen applied previously in Ontario,” Hutchison says. “Before now, if you were going to cause an adjournment, you couldn’t get off the record.

An adjournment is something the system now could tolerate as long as it won’t cause serious harm to the administration of justice. The judgment makes it very clear the standard applied is not about inconvenience.”

When the withdrawal is early enough to prevent an adjournment, it should be allowed, Rothstein said. When timing becomes an issue, the judge can ask for a reason.

When the reason is ethical, the judge must allow the request, but when it involves non-payment of fees, the court must decide if the withdrawal would damage the administration of justice by taking into consideration factors such as the impact on the Crown, witnesses, jurors, and the accused.

Only then can a judge act to block a request, Rothstein wrote.

But Greg DelBigio, who represented the Canadian Bar Association in the case, says the ruling could have unintended consequences. The prospect of fighting a trial for free, however remote, could negatively affect access to justice, he says.

“I think there is a risk that this will cause lawyers to be much more cautious about becoming counsel of record and at its worst could result in more unrepresented people before the courts,” DelBigio says.

The case originated in the Yukon, where legal aid lawyer Jennie Cunningham asked the court to remove her as counsel of record for a man accused of sexual assault offences against a six-year-old girl when his legal aid certificate was revoked.

A territorial judge denied Cunningham’s application because of the resulting delays, but the Yukon Court of Appeal overturned that decision. It drew on a convention from British Columbia that judges have no discretion to refuse a request for withdrawal.

The ruling will have its greatest impact in those two jurisdictions, since most other provinces and territories in Canada already took the opposite position.

Ron Reimer, who argued on behalf of the Crown in the case, says the ruling will force lawyers to improve management of their financial relations with clients.

“It will encourage better practice in terms of managing the retainer in places such as British Columbia, where lawyers knew they could depart from cases essentially at will,” he says.

“In Alberta, where I practise, the main impact of having this discretion is that lawyers will tell judges up front, ‘I am counsel for today only. I’m not fully retained.’

Then the system can operate on the basis of knowing what to expect.”
The Yukon case was rendered moot when the man no longer needed a trial but it proceeded to the Supreme Court so it could make a ruling on the issue.

There, it attracted a string of high-profile interveners eager to weigh in on the role of law societies and the authority of the court. The Ontario attorney general was among those backing up the Crown, while the CBA and the Law Society of British Columbia supported Cunningham.

DelBigio doesn’t expect to see much change in practice because he says the law societies of most provinces and territories forbid criminal lawyers from turning their back on a client at the last minute because of non-payment of fees.

“In some ways, it should be business as usual,” he says. “Prior to the judgment, lawyers have always been under an obligation to act ethically. Cunningham does not change that in any way. The ethical requirements that existed continue to exist, and lawyers for the most part act ethically.”

However, Reimer says professional standards alone aren’t enough to monitor withdrawal because the law society’s actions are necessarily reactive.

“Whatever the law society might have been able theoretically to do about this sort of problem, when lawyers were departing without good cause, they could do nothing to prevent that harm from happening. A court has that preventative ability,” he says.

In his judgment, Rothstein said the courts protect the administration of justice, while law societies discipline errant lawyers. That results in different, but important, roles in regulating withdrawal.

“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,” he said.

Hutchison says the ruling was also notable for Rothstein’s acknowledgment that Rowbotham orders were a factor to consider in such applications.

“If such an order were available, it would be relevant to the court’s decision on whether to decline to grant counsel’s request to withdraw,” Rothstein wrote. “That said, a Rowbotham order could not be a complete substitute to the court’s authority to refuse counsel’s request to withdraw.”

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