The Supreme Court of Canada this morning told the Canadian legal profession of its obligations to continue to provide services when the money runs out, when it handed down its decision in the Cunningham case.

Jennie Cunningham was a lawyer working for the Yukon Legal Aid Services Society. Her client had been charged with three sexual assault offences against a six-year-old girl. Legal Aid found out that the accused was working but had not reported his income. So they dropped him from coverage. The client couldn't pay. So Cunningham asked the Territorial Court in charge of the criminal proceedings for approval for her to be removed as counsel of record.

Normally the grounds for withdrawal are that the lawyer-client relationship has broken down but here, the sole reason for the application to withdraw was that her client’s legal aid certificate had been revoked.

The judge said "No".

Ultimately the accused pleaded guilty before the trial began. Cunningham had already appealed Territorial Court Judge Lilles's order to the Yukon Supreme Court: see Cunningham v. Lilles, et al., 2006 YKSC 40. Gower J. of that court sided with the judge; the Yukon Court of Appeal (Justices Newbury, Kirkpatrick and Tysoe) overturned that decision in 2008.

The Court of Appeal ruled judges should not be able to insist that lawyers have to continue representing clients who cannot pay for legal services.

Intervenors including the law societies of Upper Canada, British Columbia and the Yukon, argued before the Supreme Court that judges should not be allowed to interfere or even question lawyers about their relationships with their clients.

Rothstein J writing for a unanimous entire court upheld the trial judge:

A court has the authority to control its own process and to supervise counsel who are officers of the court. 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. This jurisdiction, however, should be exercised exceedingly sparingly. It is not appropriate for the court to refuse withdrawal where an adjournment will not be necessary, nor where counsel seeks withdrawal for ethical reasons. Where counsel seeks untimely withdrawal for non-payment of fees, the court must weigh the relevant factors and determine whether withdrawal would cause serious harm to the administration of justice.

In this case, there were two diverging lines of authority: The British Columbia and Yukon Courts of Appeal have determined that a court has no authority to prevent criminal defence counsel from withdrawing for non-payment of legal fees. The Alberta, Saskatchewan, Manitoba, Ontario, and Quebec Courts of Appeal held the opposite — a court may refuse counsel’s request to withdraw.

The court didn't think much of the argument that privilege was involved: "revealing that an accused has not paid his or her fees does not normally touch on the rationale for solicitor-client privilege in the criminal context". Similarly the Court held that both Law Societies and the courts could exercise jurisdiction over such matters of professional conduct.

In a brief paragraph they rejected the argument of conflict of interest: "forcing unwilling counsel to continue may create a conflict between the client’s and lawyer’s interests. It is argued that where counsel is compelled to work for free, he or she may be tempted to give legal advice which will expedite the process in order to cut counsel’s financial losses even though wrapping up a criminal matter as quickly as possible may not be in the best interests of the accused. This argument, however, is inconsistent with the Law Society’s position — with which I agree — that the court should presume that lawyers act ethically. There are many situations where counsel’s personal or professional interests may be in tension with an individual client’s interest, for example where counsel acquires an interesting new file that requires immediate attention, or has vacation plans that conflict with the timing of court proceedings affecting the client. Counsel is obligated to be diligent, thorough and to act in the client’s best interest. Similarly, if counsel agrees to be retained pro bono, he or she must act just as professionally as if acting for the client on a paid retainer of the same nature. 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".

The court did set out guidance on withdrawal:

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.

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, or if the accused refuses to accept counsel’s advice on an important trial issue. 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.

If withdrawal is sought for an ethical reason, then the court must grant withdrawal. 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.

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 . 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.

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.